Xtraordinary Sydney Pty Ltd (Migration) - [2020] AATA 5859

Xtraordinary Sydney Pty Ltd (Migration) [2020] AATA 5859 (3 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Xtraordinary Sydney Pty Ltd
CASE NUMBER:  1729667
HOME AFFAIRS REFERENCE(S):          BCC2017/2225695
MEMBER:Terrence Baxter
DATE:3 December 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 03 December 2020 at 1:54pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Graphic Designer – financial capacity to maintain term of employment – accumulated losses in prior financial years – improvement in financial position – wedding industry – impact of the COVID-19 pandemic – evidence of significant bookings and enquiries for the future – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 Immigration and Border Protection on 15 November 2017 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, Xtraordinary Sydney Pty Ltd, applied for approval on 23 June 2017. The applicant nominated Mr Xin Zhou (the nominee) in the position of Graphic Designer. 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)(d)(i) of the Regulations because the delegate found that the applicant had not demonstrated the financial capacity to employ the nominee on a full-time basis in the position for at least two years.
Mr Yuening Hou, a director of the applicant, appeared before the Tribunal by audio conference on 2 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee by audio conference. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal exercised its discretion to hold the hearing by audio conference through MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by audio conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair,…

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.

Keep reading for free

Create a free CaseChat account to read Xtraordinary Sydney Pty Ltd (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 5859
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning Xtraordinary Sydney Pty Ltd (the applicant) and a nomination for a visa. The core of the dispute revolved around whether the applicant met the criteria for a Temporary Residence Transition nomination under regulation 5.19(3) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had satisfied all the necessary conditions for the approval of the nomination. This involved assessing whether the applicant, as the nominator, met the requirements relating to their status as a standard business sponsor, their active and lawful operation of a business in Australia, and their compliance with training and sponsorship obligations. Furthermore, the Tribunal had to consider whether the nominated employee met the criteria regarding their previous Subclass 457 visa, their employment history, and the terms and conditions of their proposed employment.

In its reasoning, the Tribunal examined the extensive documentary evidence provided by the applicant, which included company extracts, financial statements, employment agreements, and evidence of the nominee's employment and visa history. The Tribunal applied the provisions of regulation 5.19(3), systematically assessing each sub-paragraph against the presented evidence. It was satisfied that the applicant had met the requirements concerning the nominee's previous Subclass 457 visa, the duration and nature of their employment, and the terms and conditions of the proposed employment, which were found to be no less favourable than those offered to Australian citizens or permanent residents. The Tribunal also found that the applicant had fulfilled their training obligations and that there was no adverse information that could not be disregarded.

Consequently, the Tribunal set aside the original decision and substituted a new decision approving 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

Full text does not contain this section.

Decision

Reasons for decision

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving 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.Evidence presented before the hearing The applicant provided to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) a number of documents, including:a.An ASIC business name extract for the business name Xtraordinary Photos & Video (held by the applicant) dated 15 May 2017.b.An ASIC company extract for the applicant dated 15 May 2017.c.An ABN Lookup form for the applicant dated 15 May 2017.d.An organisational chart of the applicant’s business as at 5 June 2017.e.An Employment Agreement dated 2 June 2017.f.Evidence of payment of training expenditure together with a submission from the representative dated 23 June 2017 and a summary of training expenditure.g.The applicant’s financial statements for the 2014, 2015 and 2016 financial years.h.Activity statements for the periods from January 2015 to March 2017.i.Screenshots from the applicant’s website.j.The nominee’s notices of taxation assessments for the 2014 and 2015 financial years.k.Notification of the nominee’s Subclass 457 visa dated 17 March 2014.l.Online market salary evidence dated 22 June 2017.m.A submission from the applicant regarding the employment of the nominee dated 6 June 2017.n.The nominee’s PAYG payment summaries for the 2014 to 2016 financial years.o.Extracts from the nominee’s bank statements evidencing payment of his salary from March 2015 to March 2017.p.The nominee’s payslips from June 2015 to June 2017.q.A submission from the applicant’s accountant dated 21 June 2017.r.The nominee’s superannuation statements as at June 2015 and 2016.s.A position description. The applicant provided to the Tribunal prior to the hearing further documents, including:a.An ASIC company extract for the applicant dated 5 June 2020.b.An ABN Lookup form for the applicant dated 24 June 2020.c.Work samples.d.An ASIC business name extract for the business name Xtraordinary Photos & Video dated 24 June 2020.e.An ASIC current and historical extract for the applicant dated 25 June 2020.f.The applicant’s financial statements for the 2018, 2019 and 2020 financial years.g.The applicant’s tax returns for the 2018, 2019 and 2020 financial years.h.The applicant’s Australian Taxation Office income tax 551 account for the period from 1 July 2017 to 23 July 2020.i.Activity statements for the periods from July 2019 to June 2020.j.An organisational chart of the applicant’s business as at 29 June 2020.k.Screenshots from the applicant’s current website.l.A comparison of the tasks in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for the occupation of Graphic Designer Code 232411 with the nominated duties of the nominee.m.A copy of the ANZSCO classification for unit group 2324 Graphic and Web Designers and Illustrators.n.The nominee’s tax returns for the 2015 and 2016 financial years.o.Current online market salary evidence. p.Employment Agreements dated 31 May 2013 and 25 June 2020.q.The nominee’s PAYG payment summaries for the 2014 to 2019 financial years.r.The nominee’s notices of taxation assessments for the 2014 to 2019 financial years.s.Notifications of the applicant’s approval as a standard business sponsor dated 16 August 2013 and 27 July 2020.t.A further copy of the notification of the nominee’s Subclass 457 visa dated 17 March 2014.u.Submissions from the representative dated 29 June 2020 and 27 July 2020.v.Bank statements for the applicant’s account with the Commonwealth Bank for the period from 31 March 2020 to 24 July 2020.Evidence presented at the hearing regarding the applicant’s operations

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.Terrence BaxterMemberATTACHMENT - 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.