Xie (Migration)

Xie (Migration) [2022] AATA 5205 (2 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Fei Xie
REPRESENTATIVE:  Mr Kristopher Kunasingam (MARN: 1383426)
CASE NUMBER:  1916620
HOME AFFAIRS REFERENCE(S):          BCC2017/2249559
MEMBER:Warren Stooke AM
DATE:2 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 2 August 2022 at 5:07pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of General Manager Corporate – no approved nomination – English language proficiency – salary exemption – decision under review affirmed
LEGISLATION
Fair Work Act 2009
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.222, 186.223, 186.232; rr 1.13, 1.15, 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 17 June 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 26 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of General Manager Corporate – ANZSCO Code: 11211.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the nomination lodged by Artemis Hotel Group (Australia) Pty Ltd, being the nomination referred to in paragraph 186.223(1), was refused by a delegate of the Minister for Home Affairs.
The applicant appeared before the Tribunal on 4 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Chun Yang, the owner of Artemis Hotel Group (Australia) Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant advised the Tribunal that the applicant had received and read a copy of the delegate’s decision, which was provided to the Tribunal with the application for review.
The applicant stated that she understood the application was refused due to training matters.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant has an approved standard business sponsor for the nominated occupation of General Manager Corporate – ANZSCO Code: 111211 and whether the applicant has met the English language proficiency standard required in cl.186.222.
The applicant stated that her 186 visa application was refused by the Department on 15 April 2019 and that she had read the decision of the Department and provided a copy to the Tribunal with her application.
The applicant stated that she understood the visa application was refused due to training matters.
The applicant confirmed to the Tribunal that a copy of the decision had been provided to the Tribunal with her application for review of the decision.
The Tribunal asked the applicant if she had undertaken an English language test and the applicant responded: “Not yet. I am still learning English”.
The applicant stated that prior to applying for a 186 visa she held a 457 visa from 2014, having started work in Shanghai in 1996 and then in 2013-14 she started to manage the company in Australia.
The applicant stated that she has health cover with Medibank Private and that she resides in Australia with her husband, Mr Fang Gie, and has parents and a sister residing in Shanghai
The applicant provided evidence that she is qualified in law and holds a Graduate Diploma from her studies in China.
Evidence of Mr Chun Yang (nominating sponsor)
The nominating sponsor provided evidence that the business was registered with ASIC as Artemis Hotel Group (Australia) Pty Ltd on 10 November 2009 and assigned ABN: 30 140 480 619 and ACN: 140 480 619.
The directors included Mr Chun Yang (100 per cent shareholder) appointed on 10 November 2009 and Ms Xie Fei appointed on 8 July 2013.
The nominating sponsor described the business as being engaged in real estate development that concerns a sub-division of land, where the land was bought for $20m and that construction would involve a contributing expenditure of $50m. The business expected $93m over the four stages of the development.
The business included a 50 per cent ownership of Yareton Management Pty Ltd that was registered on 17 May 2014 and jointly owned by Shanghai Mindu Real Estate Co. Ltd and Artemis Hotel Group (Australia) Pty Ltd.
The nominating sponsor stated that Artemis Hotel Group (Australia) Pty Ltd is the trust for the property and Yareton Management Pty Ltd is the beneficiary.
The nominating sponsor provided an organisation chart that included 4 Australian citizens or permanent residents; 2 foreign employees; 1 temporary business visa holder and 1 student visa holder.
The nominating sponsor provided evidence of a contract of employment that was permanent and with a start date of 22 June 2017 or as permitted to work in Australia. The contract was signed by the employer and the nominee on 22 June 2017, and the position offered is ‘permanent by nature’ that included a salary of $182,000, a $5,000 allowance and superannuation of 9.25 per cent or $16,835 that was paid into Australian Super.
The organisation chart included the position of General Manager Corporate with direct reports of Project Manager, Purchasing Manager, Finance Manager, HR Manager, Marketing Manager and Law Manager.
The nominating sponsor provided evidence that the applicant was provided with a Fair Work Information Statement at the time of employment.
The nominating sponsor provided evidence in the contract of employment that the duties of the applicant included the following responsibilities:
“You are a General Manager and will have outstanding business management and operation skills. Your tasks and responsibilities are but not limited to as follows:
_ In charge of the overall management and operation of the company and report to the MD directly;
_ Set project team and consultant team and to lead a team of professionals through the entire development process, ensure team working towards achieving company’s
project objectives;
_ Lead in master planning, architecture, landscape, graphic and ID design direction,
concept and selection of material finishes supporting overall concept set by the
company;
_ To be responsible for overall planning and development project and determining,
developing, and implementing strategies to grow the business;
_ Direct, oversee, and monitor the project ensuring completion within assigned
budgetary, resource and time constraints;
_ To ensure project completion on time, budget and acceptable quality;
_ Prepare finances requirement, manage cash flow, sourcing of funds & borrowings to complete the projects, review of finances and manage cash flow balances/debt ratio;
_ Liaise with various parties on issues pertaining to the property development, to deal
with government officials, consultants, contractors, suppliers, accountants, bank
officers, lawyers, potential buyers and etc.;
_ Communicating with the MD to ensure he remains fully informed of all significant
operating issues;
_ Ensuring profitable financial performance of the project and the achievement of set
commercial goals, and that the company's property portfolio is strategically positioned and value adding;
_ Working with the sales and marketing team to formulate strategies to achieve sales
targets;
_ Representing the company at official occasions, in negotiations, seminars, public
hearings and forums;
_ Other duties may be assigned by top management or MD.”
On 13 July 2022, the Representative for the nominating sponsor provided the following submission to the Tribunal concerning the nomination:
“Further to the request dated 8 July, we have been instructed as follows:
1. On the date Ms Fei had submitted her ENS application, being 25 June 2019, instrument 15/083 was in effect. Specifically, it allowed for a class of persons who’s salary was going to be at least equivalent to the ATO top individual tax rate (being A$180,000) was exempt from the having to satisfy the English language requirement;
2. As Ms Fei’s salary was listed as A$182,000 for her base, A$5,000 for allowances and A$16,835 (at that time) for super, she fell into the exempt category and therefore did not need to satisfy provision 186.2222.
Therefore, it is our submission that as Ms Fei feel into a class of persons within Instrument 15/083, she satisfies regulation 186.222 which was in force at the point when the application was submitted.”
The Representative for the nominating sponsor and applicant provided the Tribunal with copies of the applicant’s Australian Taxation Office assessment for the applicant’s taxable income from 2017 to 2021, as follows:
a.2017 – Gross Taxable Income - $123,842
b.2018 – Gross Taxable Income - $161,252
c.2019 – Gross Taxable Income - $163,818
d.2020 – Gross Taxable Income - $169,624
e.2021 – Gross Taxable Income - $170,759
English language proficiency
At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in legislative instrument IMMI 15/083: Business visas: cl.186.222. For visa applications made before 1 July 2017 the level required is vocational English and for visa applications made on or after 1 July 2017 the level required is competent English.
‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 1.15C of the Regulations. For both levels, a person will meet the definition if he or she either:
·undertook a specified language test in the three years preceding the visa application and achieved a specified score; or
·holds a specified passport.
In this instance, having regard to the date of visa application, the required level is vocational English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/083.
The Tribunal notes that IMMI 17/058 repealed the previous instrument specifying the classes of exempt persons (IMMI 15/083) and was expressed to apply to all Subclass 186 and 187 visa applications made on or after 1 July 2017, but also to all Subclass 186 and 187 visa applications made before that date which were not finally determined as at 1 July 2017. This includes the application under review.
Item 12 of IMMI 17/058 provides that, for the purposes of cl.186.222(b) and cl.187.222(b) for Subclass 186 and 187 visas in the Temporary Residence stream, the following class of person is specified as exempt:
Persons who have completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English. However, IMMI 17/058 is silent on whether there are any exemptions for Subclass 186 or 187 visas in the Direct Entry stream, for the purposes of cl.186.232(b) or cl.187.232(b). It therefore appears that there are no exemptions to applicants in the Direct Entry stream having to meet cl.187.232(a).
There is some ambiguity about whether the relevant instrument in force at the time of the visa application is in fact the correct one to apply. If this is so (despite the clear wording of IMMI 17/058 to the effect that it repealed the previous instrument and applied to all Subclass 186 and 187 visa applications pending as at 1 July 2017), then arguably IMMI 15/083 would be the applicable instrument. Item 2 of that instrument provides that there is one class of exempted persons for the purposes of cl.186.232(b):
Class 1
Persons who have applied... for a visa and whose earningswill be at least equivalent to the current Australian Tax Office’s top individual income tax rate.
The ATO top individual income tax rate at the time of the visa application was $180,001. There is no evidence before the Tribunal to indicate the applicant is a person whose earnings are at least equivalent to the ATO’s top individual rate. In this regard, the applicant’s Australian Taxation Office assessments for the taxable income years from 2018 to 2021, are as follows:
a.2018 – Gross Taxable Income - $161,252
b.2019 – Gross Taxable Income - $163,818
c.2020 – Gross Taxable Income - $169,624
d.2021 – Gross Taxable Income - $170,759
Accordingly, the applicant is not entitled to claim a Class 1 exemption, based upon earning that are equivalent to the current Australian Tax Office’s top individual income tax rate.
Additionally, should the Tribunal rely upon the applicant undertaking an English language proficiency test, then the evidence of the applicant at hearing was that she has not undertaken an English language proficiency test. As provided in the discussion of evidence, the Tribunal asked the applicant if she had undertaken an English language test and the applicant responded: “Not yet. I am still learning English”.
Therefore, the applicant is not a person in a class of person specified by the Minister in the legislative instrument IMMI 15/083 for cl.186.232(b).
Further, English language requirements Visa applications for ENS and RSMS made under the TRT stream lodged on or after 1 July 2017 will require, at a minimum, an International English Language Testing System (IELTS) (or equivalent test) score of 6 in each component (Competent English) (Regulations 186.222(a) and 187.222(a)). There are no transitional arrangements.
Therefore, cl 186.222 is not met.
Nomination of a position
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.
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.
The application by the nominating sponsor for the nominated position of General Manager Corporate – ANZSCO Code: 111211 was affirmed by the Tribunal in Case Matter 1910859 on 2 August 2022 on the basis that the nominating sponsor had not complied with reg 5.19(3)(h) given that the nominating sponsor had not satisfied their compliance with workplace laws. In this regard, Regulation 5.19(3)(h) requires the nominating sponsor to have 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.
The Tribunal decision in Case Matter 1910859 found that the nominating sponsor, found non-compliance with the terms of contract, since the employment on the agreed contract salary of $182,000 from the date of the applicant’s contracted employment of 22 June 2017 (for her permanent full-time employment). In this regard, the the Tribunal found that the applicant has not been paid the contracted salary during any of the following income assessable years of 2018 to 2021:
a.2018 – Gross Taxable Income - $161,252
b.2019 – Gross Taxable Income - $163,818
c.2020 – Gross Taxable Income - $169,624
d.2021 – Gross Taxable Income - $170,759
As such, the Tribunal was satisfied that the nominating sponsor had not met their payment of a salary obligation of $182,000 for the applicant in the employment years 2018 to 2021, inclusive. Accordingly, the nominating sponsor had not complied with the provisions of the Fair Work Act 2009, to meet their contracted remuneration obligations for the employment of the applicant, as a General Manager Corporate – ANZSCO Code: 111211 on a salary of $182,000 whilst employed.
Accordingly, the requirement in reg 5.19(3)(h) was not met by the nominating sponsor and the nominating sponsor did not meet the requirements of reg 5.19(3).
Given that the requirements of reg 5.19(3) were not met by the nominating sponsor, the applicant in the present case does not have an approved standard business sponsor for the nominated occupation of General Manager Corporate – ANZSCO Code: 111211.
Therefore, cl 186.223 is not met.
The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.
Warren Stooke AM
Member

ATTACHMENT A
186.223(1)     The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.

[2022] AATA 5205

2 August 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction