WONG LEE PTY LTD (Migration) - [2021] AATA 297

WONG LEE PTY LTD (Migration) [2021] AATA 297 (4 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  WONG LEE PTY LTD
CASE NUMBER:  1809845
HOME AFFAIRS REFERENCE(S):          BCC2017/1147170
MEMBER:De-Anne Kelly
DATE:4 January 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 04 January 2021 at 4:17pm
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition – tasks to be performed do not meet requirements – ANZSCO 149212 Customer Service Manager – only 53% of tasks correspond with requirements – issue of financial viability – underpayment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, rr 2.72, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 March 2018 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).
The applicant applied for approval on 24 March 2017. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i) and (ii) of the Regulations because the applicant had not demonstrated meeting their training obligations for the first and last of their sponsorship periods and it was not reasonable to disregard the failure to meet r.5.19(3)(f)(i) and find that it met r.5.19(3)(f)(ii).
The applicant appeared before the Tribunal on 25 November 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.
The applicant was represented in relation to the review by its registered migration agent, Mr Yuri Anthony Marshall, MARN: 0320165 of Brisbane Qld 4000.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 24 March 2917 the applicant, Wong Lee Pty Ltd ABN: 64010185770, which operates from Acacia Ridge Qld 4110, lodged an Employer nomination scheme – visa Subclass 186 application in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WONG LEE PTY LTD (Migration)

Details

AGLC: WONG LEE PTY LTD (Migration) [2021] AATA 297
Case: [2021] AATA 297
Decision Date: 4 January 2021

CaseChat Overview and Summary

This matter concerned an application by Wong Lee Pty Ltd for approval of a nomination under the Temporary Residence Transition stream of the Employer Nomination Scheme (Subclass 186 visa). The company sought to nominate Mr Ashneel Kant Singh for the position of Customer Service Manager. The decision under review was a refusal of this nomination.

The primary legal issue before the Tribunal was whether the applicant, Wong Lee Pty Ltd, met the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nominated occupation corresponded with the duties performed by the nominee and if the business met the financial viability and operational requirements.

The Tribunal considered the evidence presented, including statements from a director of the company regarding its operations, history, and recent sale. The Tribunal noted that the nominated occupation, ANZSCO 149212 Customer Service Manager, only corresponded with approximately 53% of the tasks described for the position. Furthermore, the Tribunal indicated it might rely on information regarding financial viability and potential underpayment of the nominee as reasons for affirming the decision. The Tribunal applied regulation 5.19(3), which requires all criteria to be met for a nomination to be approved, and found that the applicant had not satisfied these requirements.

The Tribunal affirmed the decision under review to refuse the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met. On 24 March 2917 the applicant, Wong Lee Pty Ltd ABN: 64010185770, which operates from Acacia Ridge Qld 4110, lodged an Employer nomination scheme – visa Subclass 186 application in the Temporary Residence Transition stream for the position of Customer Service Manager on $54,996 per annum in favour of Mr Ashneel Kant Singh. Mrs Agnes Chaw, a director, represented the company. She stated that the company wholesales packaging materials; it started in 1988 and has been in business for more than 30 years. They sell to Darwin, the Northern Rivers, Sydney, Melbourne, northern Queensland, and the Gold and Sunshine Coasts. They have lots of customers. There are 15 staff. They went through COVID-19 and it was fine, and they did not need Job Keeper. Mrs Chaw advised that the business had been sold in August 2019 and her son now runs the business for the new owners. The business is growing all the time. The new owners, Bonson Savpac Pty Ltd, are previous suppliers of theirs from NZ. Bonson Savpac Pty Ltd wanted to expand into Australia and the directors did not want them as competitors so it suited well to sell them the business. Bonson Savpac Pty Ltd are renting their warehouse and Mrs Chaw and her husband have retired. Her son has been made the General Manager. The Tribunal noted the following financial figures for the business up to FY 2019: At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from their registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time. Section 359AA provides as follows:(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and(b) if the Tribunal does so—the Tribunal must:(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and(ii)orally invite the applicant to comment on or respond to the information; and(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.Previous employment of the nominee: r.5.19(3)(c)

Decision

Reasons for decision

For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in the Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision under review to refuse the nomination.De-Anne KellyMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval of nominated positions (employer nomination)…(2)The application must:(a)be made in accordance with approved form 1395…; and(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and(b)be accompanied by the fee mentioned in regulation 5.37.Temporary Residence Transition nomination(3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and(iii) identifies an occupation, in relation to the position, that:(A)is listed in ANZSCO; and(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and(b)the nominator:(i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and(ii) is actively and lawfully operating a business in Australia; and(iii) did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and(c)either:(i) both of the following apply:(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has: (I)held one or more Subclass 457 visas for a total period of at least 2 years; and(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);(B)the employment in the position has been full-time, and undertaken in Australia; or(ii) all of the following apply:(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);(B)the nominator nominated the occupation;(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and(d)for a person to whom subparagraph (c)(i) applies:(i) the person will be employed on a full-time basis in the position for at least 2 years; and(ii) the terms and conditions of the person’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) the nominator:(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or(ii) it is reasonable to disregard subparagraph (i); andNote Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.(g)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(h)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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.De-Anne KellyMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval of nominated positions (employer nomination)…(2)The application must:(a)be made in accordance with approved form 1395…; and(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and(b)be accompanied by the fee mentioned in regulation 5.37.Temporary Residence Transition nomination(3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and(iii) identifies an occupation, in relation to the position, that:(A)is listed in ANZSCO; and(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and(b)the nominator:(i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and(ii) is actively and lawfully operating a business in Australia; and(iii) did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and(c)either:(i) both of the following apply:(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has: (I)held one or more Subclass 457 visas for a total period of at least 2 years; and(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);(B)the employment in the position has been full-time, and undertaken in Australia; or(ii) all of the following apply:(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);(B)the nominator nominated the occupation;(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and(d)for a person to whom subparagraph (c)(i) applies:(i) the person will be employed on a full-time basis in the position for at least 2 years; and(ii) the terms and conditions of the person’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) the nominator:(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or(ii) it is reasonable to disregard subparagraph (i); andNote Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.(g)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(h)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.