Wang (Migration)

[2022] AATA 3285

Wang (Migration) [2022] AATA 3285 (4 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yu Wang
Mr Xitao Li
Master Zicong Li
Miss Zhinuo Li

REPRESENTATIVE:  Mr Ray Brown (MARN: 9250028)

CASE NUMBER:  1911592

HOME AFFAIRS REFERENCE(S):          BCC2018/3984238

MEMBER:Stephen Witts

DATE:4 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.223 of Schedule 2 to the Regulations; and

Statement made on 04 July 2022 at 11:06am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Management Accountant – genuine need – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 May 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 28 June 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position Management Accountant ANZSCO code 221112.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant met the criteria for the grant of an employer nomination scheme visa.

6. The applicants appeared before the Tribunal on 10 May 2022 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, HD Mining Exploration Darwin (Australia) Pty Ltd.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The applicants were represented in relation to the review.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the criteria for the grant of an employer nomination scheme subclass 186 visa.

12. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

13. In particular the Tribunal notes that the applicant has provided it with a copy of the relevant delegate’s decision for the nominator dated 11 March 2019. In this decision it was contended that the nominator lodged a nomination application online in relation to the occupation of management accountant, that the nomination type was temporary residency transition stream, and the nominee was the applicant, Ms Yu Wang. It was also contended by the delegate that the anominator was registered in October 2006 and has employed seven Australian employees and one foreign employee and that the nominated employee will be employed on a full-time basis in the position for at least two years and that the base salary for this position is $80,400 and that based on an assessment made the delegate was not satisfied that the applicant had demonstrated that it has a genuine need to employ the person as a paid employee to work in the position under the nominator’s direct control.

14. The Tribunal notes that the applicant has provided it with submissions prior to the hearing. The Tribunal notes that it has been provided with a submission from the applicant’s representative dated 3 March 2022. In this material was provided ASIC information, financial information including BAS statements, organisation structure charts, a position description for a cost accountant, visa information, an employment contract from 2015, payment summaries, training material, an overview of the business, and other material.

15. The Tribunal notes that a letter was provided by the nominator dated 3 March 2022 stating that the company’s main business was transnational mining patented technology, equipment, and a raw material business and that its principal business is the sale of technology products in that it is involved in patented technology research and documentation which then it then sells on. An example of such a technology developed included the use of steel plant tailings and nickel tailings presenting as waste which is then used to manufacture cement technology. It was further stated that the company’s business activities were affected by the pandemic and that the company has been seriously affected throughout this period. It was further stated that the company only has one financial manager, the nominee, who has worked in this position for seven years, and that such managers in mining venture companies “have suffered from hardships in field activities”, and that they are scarce in Australia. It was also stated that the nominee has over viewed the whole process of “experimental raw materials, equipment investment finance and audit work”, of a project in China. It was also stated that the nominee has been sent to New Zealand and China by the company to involve herself in its investment management and asset audit work and that the company has invested almost $10 million in this particular project and has not recovered all that investment at this stage.

16. The Tribunal notes that information was provided indicating that the company has an ABN number 30114765187 and that its registration date was 15 June 2005 and that its two directors are Mr Tiejun Zhang and his wife Yaqin Wang. Also provided was a company organisation chart indicating that the two principal shareholders are Mr Zhang and his wife and that they own a company called Hongdai Energy Technology (Aust) Pty Ltd with an ACN number of 086779035 which in turn owns the company which is the subject of this application and also another company called HD Mining Technology Group Ltd with an ABN number of 29605060991 and that this company in turn owns three other offshore patent companies.

17. The Tribunal notes that information was also provided indicating that the director of the business Mr Zhang is an Australian permanent resident and that the manager of the overseas business division who works part-time for the company is also an Australian permanent resident and that the only employee is the nominee who works full-time in the business and is on a bridging visa.

18. The Tribunal also notes that a job description was provided for a cost accountant, translated from Chinese, indicating that the position is accountable for budgeting, cost management, performance evaluation and asset management within the company and that the position is responsible for project budgetary and asset valuation, preparing financial statements, examining operating costs, maintaining control systems, appraising cash flow and financial risk, conducting financial investigations, undertaking financial reporting, providing financial and tax advice and maintaining accounting systems for the company.

19. The Tribunal also notes that employment contracts were provided for the nominee dated 18 April 2018 and 28 April 2015.

20. The Tribunal also notes that a letter was provided by a chartered accountant dated 4 March 2022 indicating that due to the large workload and staff shortages it will take some time to prepare and finalise financial accounts.

21. The Tribunal notes that on 3 May 2022 further documentation was provided to the Tribunal. This included further company information indicating that the company is involved in mining exploration, testing, research and development and venture capital and works in the gold, iron, nickel, and magnesium areas of the industry and is partnered with Chinese laboratories and expert consultant teams and that it has patented technology approved by the Chinese government. The Tribunal notes that some financial material was provided as part of this presentation but that it was not verified as ATO data.

22. The Tribunal notes that also included on 3 May 2022 was a letter written to the Tribunal indicating the duties and responsibilities of the nominee which it was stated included day-to-day assignments, establishing financial planning and policies, formulating budgets and asset valuation activities, preparing financial statements, examining project operating costs, maintaining project control systems, appraising cash flow, providing financial and taxation advice and maintaining cost and accounting systems. It was stated that she has worked full-time for the last six years and that the position is a very important one to the company.

23. The Tribunal notes that on 3 May 2022 the nominator contacted the Tribunal indicating that it was having problems providing up-to-date financial information for the last two tax years. To highlight this a letter was provided from a chartered accountant dated 3 May 2022 indicating that it has been instructed to prepare reports that comply with statutory and accounting standards and that it should be able to finalise these documents by 6 May 2022. Also provided was a letter from the nominator stating that it apologised for not being able to provide the appropriate 2020 and 2021 financial statements.

24. The Tribunal notes financial statements were provided for the tax year 2019 indicating that the business had a total trading income of approximately $700,000, that it was carrying approximately $2 million in financial liabilities, that it had cash assets of approximately $20,000, and that it paid total salaries of approximately $100,000.

25. The Tribunal also notes that financial statements were provided on 9 May 2022 for the tax year 2020 indicating that the business had a total trading income of approximately $300,000, and that it made a carryover loss of approximately $600,000, and that in the tax year 2021 it had a total trading income of approximately $200,000 and a carryover loss of approximately $500,000. Its wages paid in those two financial years were approximately $100,000 in 2020 and $130,000 in 2021.

26. At the hearing the Tribunal had a discussion with the nominator and the nominee regarding their applications.

27. The nominator stated that he employed the nominee in July 2015 and that she has worked for him full-time for the last seven years engaged in professional accounting activities as outlined in the submissions provided prior to the hearing. The Tribunal had a detailed discussion with the parties regarding the duties and responsibilities of the nominee and is satisfied that the nominee after having been employed now for seven years is in a position where she can retain her employment with the nominator or for at least another two years.

28. The Tribunal had a detailed discussion with the nominator regarding the financial circumstances of the company and is satisfied that the evidence provided demonstrates that although the company holds some liabilities that it’s business plan going forward, in particular the dates upon which the patent technology becomes active, is such that demonstrates that the business is in a position to continue the employment of the nominee for the next two years at least.

29. The Tribunal had a discussion with the nominee regarding her duties and responsibilities noting that she provides genuine financial and accounting advice and undertakes duties and responsibilities relevant to both the Australian taxation environment and also the Chinese taxation environment. She stated that she first came to Australia in 2008 on a student visa and that she studied for and completed a bachelor level degree in accounting and finance and then followed this up by a master level qualification in financial planning. She stated that she then returned to her home country and worked in that field for some two or three years prior to coming back to Australia on a 457 visa and that she has been working as a full-time employee of the nominator for seven years.

30. After a discussion with the applicant’s representative the Tribunal gave the parties until 17 June 2022 to provide further evidence due to an assertion that the nominator gave evidence that was not necessarily translated to best effect.

31. The Tribunal notes that further evidence was provided on 17 June 2022. The Tribunal is satisfied from the evidence presented that there is a genuine need that has been established to employ the nominee in the nominated position of management accountant and that the nominee has been undertaking this occupation for some seven years.

    Nomination of a position

32. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

33. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

34. The Tribunal finds that the applicant meets the above requirements.

35. Therefore, cl 186.223 is met.

36. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

37. The Tribunal also finds that as the primary applicant did meet the criteria for the grant of the visa that the secondary applicants also did meet the criteria for the grant of the visa.

    DECISION

38. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.223 of Schedule 2 to the Regulations; and

    Stephen Witts
    Member

    
    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.