Wei Wah International Trading Pty Ltd (Migration)

[2017] AATA 449

Wei Wah International Trading Pty Ltd (Migration) [2017] AATA 449 (27 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Wei Wah International Trading Pty Ltd

CASE NUMBER:  1602667

DIBP REFERENCE(S):  BCC2015/2333603

MEMBER:R. C. Titterton

DATE:27 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 27 March 2017 at 7:46am

CATCHWORDS

Migration – Nomination – Direct Entry Nomination stream – Sales and marketing manager – Genuine need for position – Duties corresponded with those set out in ANZSCO

LEGISLATION

Migration Regulations 1994, Schedule 2, r 5.19

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 Immigration on 22 February 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 13 August 2015. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations in that the business conducted by the applicant did not require a sales and marketing manager the full-time position on a base salary of $180,000 per annum.

5. The applicant was represented at the hearing by its owner and director Mr Peter Chen .He gave evidence and presented arguments.

6. The applicant was represented in relation to the review by its registered migration agent, Mr Ted Chen.

7. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

EVIDENCE

1. The information before the Tribunal included the following :

   (a)the financial statements for the applicant for the financial year ended 30 June 2014;

   (b)a company profile for the applicant titled “Country Profile 2015”;

   (c)a letter to the Department dated 2 September 2015 setting out the undertakings of the applicant in relation to paying statutory salary to the sponsored employee, undertaking his medical and hospital costs and any repatriation costs;

   (d)a contract dated 12 August 2015 between the applicant and the employee;

   (e)a sample of the sales contract of the type entered into by the applicant;

   (f)Business Activity Statements for the applicant for the 2015 financial year;

   (g)a copy of a lease dated 24 January 2011 entered into between the applicant and another company, in respect of premises leased by the applicant in Lansdale;

   (h)invoices in relation to staff training;

   (i)a position description for the nominated occupation;

   (j)comparable salary information for similar positions, together with a “Market Salary Statement: Sales Executive” prepared either by the applicant or its agent.

2. The Tribunal notes that all this information was before the delegate.

3. In addition, the following documents were provided to the Tribunal shortly before, or at, the hearing:

   (a)various business activity statements for the applicant for 2015 and 2016;

   (b)further commercial invoices representative of the kind entered into by the applicant;

   (c)detailed submissions prepared by the applicant’s agent, undated but titled “Genuine Need Statement”.

   (d)the financial statements for the applicant for the year ended 30 June 2015.

4. Shortly after the hearing, the Tribunal received draft financial statements for the year ended 30 June 2016 from the applicant’s accountant, and information relating to the applicant’s training obligations.

5. The Tribunal notes that the business of the applicant is large and successful. In the 2016 financial year the company’s sales were approximately $5.8 million. Sales grew in the 2017 financial year to over $7.1 million. Total shareholders’ equity exceeds $11 million.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

The application is compliant: r.5.19(4)(a)

1. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

2. Information on the Department’s file indicates that the application for approval was made on the approved form and was accompanied by the fee prescribed. The Tribunal is also satisfied on the evidence before it that the application identified a need for the nominator to employ a paid employee to work in the position.

3. Accordingly, the requirement in r.5.19(4)(a) is met.

Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

17.Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

1. Having considered the evidence before it, including the financial reports, business activity statements, ATO activity statements, purchase orders, the applicant’s website and the oral evidence of Mr Chen, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.

2. Accordingly, the requirement in r.5.19(4)(b) is met.

Position is not labour-hire: r.5.19(4)(c)

20.Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.

1. The nominator’s business is not involved in labour hire activities.

2. Accordingly, the requirement in r.5.19(4)(c) does not apply.

Term of employment of the visa holder: r.5.19(4)(d)

23.Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

1. The Tribunal has had regard to the terms and conditions of employment contained in the employment contract, which indicate that the nominee will be employed in the position on a full time basis for a period of 2 years which is renewable. The base salary indicated is $188,000 plus superannuation. There is no issue, given the financial evidence before the Tribunal, that the applicant has the capacity to pay this salary. 

2. On the material before it, the Tribunal is satisfied as to the nominator’s financial capacity and finds that the nominee will be employed in the position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.

3. Accordingly, the requirement in r.5.19(4)(d) is met.

No less favourable terms and condition of employment: r.5.19(4)(e)

27.Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

1. The Tribunal has had regard to the employment contract, which details the terms and conditions of the nominee’s employment, and indicates that he will be paid a base salary of $188,000 plus superannuation. This is consistent with a number of advertisements for Sales Executive/Manager included in the materials before the Tribunal. Having regard to the submissions and information before it, the Tribunal is satisfied on the evidence that the terms and conditions of employment are consistent with those being offered to a person performing a similar role. Accordingly, the Tribunal is satisfied that the terms and conditions applicable to the position will not be less favourable than those provided to an Australia citizen or permanent resident performing equivalent work.

2. Given the above, the Tribunal finds that the requirements of r.5.19(4)(e) are met

No adverse information known to Immigration: r.5.19(4)(f)

30.Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

1. There is nothing on the Department’s records to suggest that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.

2. Accordingly the requirements of r.5.19(4)(f) are met.

Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

33.Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

1. The applicant has indicated that it has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff, and there is no evidence before the Tribunal to suggest otherwise.

2. Accordingly the requirements of r.5.19(4)(g) are met.

Tasks of the position genuine need for the position and training benchmarks: r.5.19(4)(h)

36.Regulation 5.19(4)(h) contains a number of alternative requirements. The relevant paragraph in this case is r.5.19(4)(h)(i), which requires the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, and certain specified training benchmarks will be met.

1. The Tribunal has also considered the nature of the tasks to be performed in the position and whether it correspond to an occupation specified on the relevant instrument. The tasks of the position as set out in documents provided with the nomination largely reiterated the tasks in the ANZSCO occupation 131112 for a Sales and Marketing Manager. At the hearing, the Tribunal had the opportunity to talk to Mr Chen about the actual duties of the position. He confirmed that the job description which accompanied the application (and which was before the delegate) accurately reflected the role and duties of the position. The Tribunal was satisfied that the duties corresponded with those set out in ANZSCO, in summary being directing the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty; directing the development and implementation of strategies to promote an organisation's goods and services to as many people as possible; directing the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'; and directing the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public.

2. Given the above, the Tribunal is satisfied that the tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument. The Tribunal finds that r.5.19(4)(h)(i)(A) is therefore met.

3. The Tribunal has also considered the training requirements in r.5.19(4)(h)(i)(A) and the relevant instrument IMMI 13/030 which sets out the requirements relating to training.

4. The applicant commenced operation in 1992. The Tribunal accordingly finds that the nominator has operated for over 12 months and is therefore required to demonstrate it meets the requirements relating to training.

5. The nominator claims to meet benchmark A, which requires recent expenditure by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business. In determining the business’ payroll the Tribunal has had regard to its financial reports and activity statements, which indicate that in the 12 months to 30 June 2016 the applicant’s payroll, including superannuation, was $378,046.00. Accordingly, 1% is approximately $3,780.00. On the basis of the information provided by the applicant to the Tribunal (namely an invoice of More Learning Pty Ltd dated 16 December 2016, in the sum of $4,000 the Tribunal finds that the applicant meets training benchmark A, as specified in IMMI13/030, and accordingly meets r.5.19(4)(h)(i)(A).

6. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

CONCLUSION

1. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

R. C. Titterton
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. The application must:

   (a)be made in accordance with approved form 1395…; and

   (b)be accompanied by the fee mentioned in regulation 5.37.

…

Direct Entry nomination

1. The Minister must, in writing, approve a nomination if:

   (a)the application for approval:

   (i)     is made in accordance with subregulation (2); and

   (ii)    identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

   (b)the nominator:

   (i)     is actively and lawfully operating a business in Australia; and

   (ii)    directly operates the business; and

   (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

   (d)both of the following apply:

   (i)     the employee will be employed on a full-time basis in the position for at least 2 years;

   (ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

   (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

   (i)     are provided; or

   (ii)    would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

   (f)either:

   (i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

   (ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

   (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

   (h)either:

   (i)     both of the following apply:

   (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (B)either:

   (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

   (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

   (ii)    all of the following apply:

   (A)the position is located in regional Australia;

   (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

   (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

   (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (E)the business operated by the nominator is located at that place;

   (F)a body that is:

   (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (II)located in the same State or Territory as the location of the position;

   has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).