YHI Power Pty Ltd (Migration)

[2020] AATA 2592

YHI Power Pty Ltd (Migration) [2020] AATA 2592 (22 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  YHI Power Pty Ltd

CASE NUMBER:  1819633

DIBP REFERENCE(S):  BCC2017/2316338

MEMBER:Danielle Galvin

DATE:22 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 22 June 2020 at 1:16pm

CATCHWORDS

MIGRATION – application for approval of nominated position – Direct entry stream – need for position – nominator seeking to increase market share – unable to find suitable candidate locally – position currently vacant and saved for nominee – other employees covering duties – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), 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 3 July 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).

2. The applicant applied for approval on 29 June 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 (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 the 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 because the applicant had failed to identify a need for a paid employee to work in the position of Marketing Specialist (ANZSCO 225113) under the direct control of the nominator. Specifically the delegate , having reviewed the information provided by the applicant, found that that information did not indicate that appropriate market research had been undertaken nor that revenue projections or a comprehensive business plan had been provided and therefore there was insufficient information to indicate how the position would contribute to the business and justify “the rationale behind the nominated position”.

5. The department provided the following documents to the Tribunal:

   ·The application for employer nomination for a permanent appointment under the employer nomination scheme-visa subclass 186, dated 29 June 2017, for direct entry for the position of Marketing Specialist on a salary of $55,000. It states that there are 46 Australian employees consisting of 28 professionals and 18 tradespersons. The gross payroll expenditure in the 12 preceding months is stated as $3,459,472 and the gross training expenditure for the same period is stated as $38,680. The nominee is named as Jinfu Guo and has 3 migrating family members;

   ·commercial lease dated May 2003 whereby the applicant is the lessee of premises in Braeside Victoria;

   ·Westpac statements for applicant, YHI Power Pty Ltd trading as Battery Guru for 28/10/16-31/10/16, 29/9/16-30/9/16, 30/8/16-31/8/16;

   ·ABN Lookup for 3 businesses listed as being owned by the applicant-Best Battery, Solar Guru and Battery Guru;

   ·Australian Battery Industry Association Limited Certificate of Membership for the applicant being valid to 30/6/17;

   ·ASIC business extract for Best Battery as at 5/12/16;

   ·Brochure and product list the applicant stating that it is a distributor of high quality industrial and automotive batteries. It states that “YHI Power has adopted the group’s “3M Strategy:-Multi-product, multi-brand, multi-category, enabling it to focus on a portfolio of premium and proprietary brands and providing our customers with more purchasing options.”;

   ·Website screen shot as at 5/12/16;

   ·Applicant’s Telstra bill as at 22/8/16;

   ·ASIC company extract for the applicant as at 5/12/16;

   ·Australian solar council receipt dated 18/8/16;

   ·Applicant’s expense claim form;

   ·Tuition fees for 2 diplomas of business students and 2 adv. Diplomas of business as at 15/12/16 and bundle of receipts form Legend Institute and Einstein College and Melbourne city college;

   ·Unverifiable applicant’s company tax return for 2016 showing sales as $27,163,013, subcontractor, contractor and commission expenses as $276,931 salaries/ wages not specifically referred to;

   ·Applicant’s BAS FOR May 2016 showing sales as $2,819,558 and salaries as $267,630, June 2016 showing sales as $3,714,282 and wags as $256,758, July 2016 showing sales as $3073213 and wages as $261041, August 2016 showing sales as $3178814 and wages as $273365, ETC- BUNDLE OF bas;

   ·Signed employment contract between applicant and nominee dated 28/6/17 for the position of Marketing Specialist on a fulltime basis reporting to Managing Director on a salary of $55,000 plus super;

   ·Applicant’s unverifiable company tax return for 2017 showing sales of $2,908,711 and salaries as $2,928,936 and payments to contractors and subcontractors of $260191;

   ·Open letter dated 11/8/17 from My World Group Pty Ltd advising that they are the tax accountants for the applicant and that the company’s financial position is sound;

   ·Directors reports for 2016;

   ·Tenancy confirmation for Queensland office;

   ·Applicant’s heads of subsidiaries list;

   ·Lease agreement whereby the applicant is the lessee;

   ·Applicant’s brochure;

   ·Organisational chart of the Queensland branch of the applicant showing a managing director under which a Sales and Marketing manager is positioned under which the nominated position sits. There are 16 employees listed including the Managing Director and nominated position with no name associated with it;

   ·Melbourne city college document re developing an advertising campaign;

   ·28/6/17 Director’s statement in support of 186 nomination application stating that the business has 6 branches across Australia and that the marketing specialist position became vacant due to the resignation of an employee, Nash Duarte who had been working there for 5 years. It states that the business has identified a qualified candidate without naming them;

   ·PAYG for Mr Duarte;

   ·19/5/17 resignation email of Nash Duarte;

   ·28/6/17 applicant letter to Department re training for other employees;

   ·Bundle of unrelated payslips and personal information for other employees;

   ·Bundle of Applicant’s BAS for April 2017 -June 2017, July 2017, Sept 2017, July 2017-Sept. 2017, Oct. 2017, Nov. 2017, Oct. 2017-Dec.2017, Jan. 2018, Feb. 2018, Jan. 2018-Mar. 2018

   ·Unrelated visa grant notice

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

7. On 16 January 2020 the Tribunal invited the agent, acting for the applicant, to provide updated and current information in support of the review application. A response was required in writing by 30 January 2020. In response a number of documents were provided in part the agent seeking an extension to provide further information. The documents submitted were as follows:

   ·Applicant’s registration certificate noting its previous name as Premium Power Pty Ltd;

   ·Applicants unverifiable tax return for 2019 showing sales as $38790004;

   ·Applicant’s BAS for July 2019-Sept.2019, Aug. 2019, July 2019, April-June 2019, May 2019, April 2019. Jan-March 2019, Feb. 2019, Jan. 2019, Oct.- Dec 2018, Nov. 2018, Oct. 2018;

   ·Applicant’s company extract as at 26/6/19;

   ·Applicant’s financial statements for 2017;

   ·Applicant’s Westpac bank statements for October 2019 t/a/Battery Guru;

   ·Unverifiable financial statement for 2018;

   ·Unverifiable company tax return for the applicant for 2018;

   ·Unverifiable company tax return for the applicant for 2020 but for the period 1/1/19-31/12/19;

   ·Job description for the nominee stating that he reports to the QLD. managing director and QLD. State manager and states “supervisers: none”. It notes that the position duties are subject to change but are as follows  -conduct battery market research including industrial and solar to find answers about consumer requirements, habits and trends,  -brainstorm and develop ideas for creative marketing campaigns,  -assist in outbound or inbound marketing activities by demonstrating expertise in various areas (content development and optimization, advertising, events and campaigns);  -liaise with external vendors to execute promotional events and campaigns,  -collaborate with marketing and other professionals to coordinate brand awareness and marketing efforts,  -plan and execute initiatives to reach the target audience through appropriate channels(social media, e-mail, TV etc,  -assist in analysing marketing data(campaign results, conversion rates, traffic etc) to help shape future marketing strategies,       -undertake individual tasks of a marketing plan as assigned.  -  -

   ·Bundle of purchase orders;

   ·Document entitled NSW solar battery market by JR (3 months report)

   ·applicant product guide;

   ·alleged examples of nominee’s work performed by others in 2018,2019 and 2020 but are bundle of email exchanges between Irene Hang (HR and office manager) and others about layouts- no mention of nominee (Clane Chai, graphic designer and office administrator, Jessica Zhang, Jason Zhu, Derek Poon, Joe Abela, David Chen. Kunal Shah, Aaron Smith, David Ochert, Kaylene Grieve and Zora Zhang

   ·document described as promotional materials for 2020 calendar;

   ·employment contract for applicant and nominee requiring nominee to report to Managing Director and Queensland State Manager signed 23/1/20;

   ·bundle of training invoices;

   ·self generated payroll summary of other employees ;

   ·agent’s submission re applicant’s training requirements.

8. On 31 January 2020 the Tribunal granted an extension to the applicant to provide information until 20 February 2020. On that day the Tribunal received the following documents:

   ·Unverifiable financial statement for 2019;

   ·Open letter dated 19 February 2020 from David Chen, Managing Director of the applicant, confirming the desire to nominate an overseas employee in the position of Marketing Specialist. The letter is a statement of the genuine need claim to do so by the applicant. It states that competition is tough and claims that the applicant holds approximately %50 market share on UPS batteries, 5% for automotive batteries and less than 1% on solar batteries. The claim is that to increase market share need a dedicated market researcher, planner and implementer. It is claimed that they had a marketing specialist who left in June 2017 and intended to nominate the nominee and lodged an application in 2017. The delay in the process meant that they saved the position for the nominee and had others perform it. The state managers have devoted some time to setting marketing strategies and coordinate marketing activities and office and HR managers have conducted battery market research and analysis and assisted state managers to execute marketing strategies and plans. It claims that the nominee was discovered working for a supplier in 2017 working as an assistant manager in the marketing department and found he had a profound knowledge of the battery industry and because the majority of batteries are made in China and nominee speaks Mandarin and English. The tasks are repeated (see above) and nominee will conduct market research, strategy making, marketing planning, coordination and implementation work from current employees and centralise management of marketing strategies and facilitate marketing activities in each state. Wish to expand Queensland market. It claims that nominee’s skills have been assessed and recognised by VETASSESS;

   ·Applicant’s 2020 marketing plan;

   ·Booking confirmation for Pamela Wang of the applicant to a Auto expo 2017 and invoices

   ·Market rate for marketing specialist recommending an offer of $65,000 to the nominee;

   ·Organisational chart for nominee answering to David Chen and Queensland state manager

9. The applicant appeared before the Tribunal on 26 May 2020 represented by Irene Hang and Ms Zhang, the migration agent., it’s office and human resources Manager. Ms Hang stated that the nominee Mr Guo was currently residing and working in Indonesia for another employer performing a Marketing role and is caught there as a result of the COVID 19 travel restrictions. She stated that the nominee has extensive knowledge of the battery industry and travels from China to other countries including Australia to see clients and promote various products. Ms Hang stated that the majority of the batteries that the nominator sells are manufactured in China and the business is seeking to expand its operations in relation to solar batteries. It was this pursuit that brought about a meeting with the nominee at an Energy show. Ms Hang stated that the business saw potential in the engagement of the nominee. Ms Hang stated that currently the business’s marketing is conducted by a number of employees in the business including Mr Chen , the Managing Director and is spread amongst a number of areas of the business. She described this as unsatisfactory and there was a need to engage a designated employee to perform the role as Marketing Specialist. She stated that the nominee would be based in Brisbane to assist in the expansion of the Queensland market but that he would be working for the business nationally.

10. Ms Hang confirmed that the nominee’s skills had been assessed by VETASSESS and that she would provide a copy of their report to the Tribunal. Ms Hang stated that the employee who had historically filled the role of Marketing Specialist left the company in June 2017 and they had not been able to fill the role having advertised on SEEK and locally. However, she stated that there had not been any other candidate with the nominee’s credentials for the role.

11. Ms Hang further stated that as part of the future marketing plan the nominee would assist in preparing a more workable plan given his market experience in the battery industry. She stated that the nominee had knowledge of certain technologies that the business wished to expand into. She stated that the employees currently undertaking marketing tasks were doing so on top of their other roles and that this was not ideal.

12. The Tribunal allowed the applicant until 9 June 2020 in which to provide further information in support of Ms Hang’s contentions.

13. On that day the applicant provided the following documents to the Tribunal:

    ·Undated document entitled ‘Further explanation on the reasons for nominating Mr Jinfu Guo”. The document states that since losing their previous marketing specialist and having tried to locally source a replacement (reference to advertisement on SEEK in May 2017) the applicant could not find a suitable candidate that met all of their requirements including a knowledge of the battery industry and proven marketing experience. It claims that the nominee once worked as an assistant marketing manager for a supplier, Shuang Deng Group. Whilst waiting for approval the applicant claims to have spread marketing duties between H.R. State and Sales Managers. It states that there is no employee to conduct Australian market research and as the business is growing there is a need for a designated marketing specialist;

    ·VETASSESS letter dated 22/6/17 addressed to nominee stating that the claimed employment history in China is appropriate for the skill level required for the nominated position, the period of employment being from 5/2012-6/2017;

    ·Organisational chart as at 2020 showing provision for a marketing specialist currently vacant and 65 other employees under the Managing Director. Which office the chart refers to is not stated;

    ·Work experience certification letter from Shuangdeng Group Co. Ltd dated 26/5/20 stating that the nominee worked as Assistant Manager of marketing from 1/1/09-31/3/19;

    ·simplified organisational chart as at 2020 showing nominated position as vacant ;

    ·letter dated 28/5/20 from Zhongrui Green Energy Technology (Shenzhen) Co. Ltd stating that the nominee has been employed by it since 1 April 2019 as Marketing Manager;

    ·SEEK advertisement of applicant dated 11/5/17;

    ·nominee’s certificate in Chinese medicine dated 1/12/16;

    ·applicant’s research on market rate for marketing specialist;

    ·nominee’s resume

14. 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

15. 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)

16. 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.

17. The application was made in the approved form and included a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.

18. The oral evidence of Ms Hang detailed that other employees had been distracted from their roles to assist in and perform marketing duties that the nominee is proposed to perform. Ms Hang stated that this was not ideal in a business seeking to grow its market share. It is apparent from the financial material submitted, whist not all verifiable, that the business is thriving.  The Tribunal accepts that there are 65 employees over various branches in Australia and that the nominee is proposed to work from the Brisbane office for the benefit of the business generally answering to that regional managing director as shown in the organisational charts provided.

19. Having regard to the material submitted including financial records, the organisational charts, the number of staff involved and the nature and size of the business, the Tribunal accepts that there is a need for the nominator to employ a paid employee to work in the position of Marketing Specialist

20. 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)

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

22. The Tribunal finds that in this case, having regard to the registration of the company and its associated businesses as referred to above and the verifiable BAS provided, and the lack of evidence to the contrary, that the nominator is actively and lawfully operating a business in Australia.

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

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

24. 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.  In this case there is no evidence within the documentation provided or from the oral evidence submitted at the hearing that the nominator is engaged in any labour hire activities.

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

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

2. 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.

3. There is no reference to a limited term in the contract of employment dated 28 June 2017 and no expressly excluded extension beyond 2 years. The Tribunal accepts that the business has the capacity to retain the nominee for a period of 2 years based on the material provided and the oral evidence submitted.

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

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

5. 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.

6. The Tribunal accepts having regard to the employment contract that the nominee is to be paid a base salary of at least $55,000 plus superannuation at the rate of the Government guarantee of %9.5. The Tribunal also has had regard to the documents submitted relating to like salary packages for the nominee in the Market rate research provided to the Tribunal and is satisfied that the terms and condition applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

7. Accordingly the requirements of r.5.19(4)(e) are met.

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

8. 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. 

9. There is no adverse information known to the Tribunal. In the absence of any such information the Tribunal accepts that there is no adverse information known to Immigration and therefore no information to disregard.

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

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

11. 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.

12. There is no information before the Tribunal to suggest that there has been anything but a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

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

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

14. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised, in relation to this case, as requiring that the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/059), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met.

15. From the oral evidence submitted at the hearing, the terms of the employment contract, the position description provided and the Tribunal’s reference to the relevant ANZSCO description of the tasks to be performed by the nominee, and the VETASSESS assessment of 27 June 2017, the Tribunal is satisfied that the proposed tasks to be performed will be performed in Australia and correspond to the ANZSCO description.

16. The business has been operating for a number of years and therefore the nominator must have fulfilled the requirements for the training of Australian citizens and permanent residents specified in a legislative instrument. The applicant has submitted evidence of payments to the a number of training bodies listed above and therefore have established that they meet the required training benchmark.

17. Accordingly, the requirements of r.5.19(4)(h) are met.

18. 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

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

    Danielle Galvin
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval 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.

    …

    Direct Entry nomination

    (4)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;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (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;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (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).