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1504290 (Migration) [2016] AATA  3153  (1 February 2016)

Last Updated: 8 February 2016

1504290 (Migration)  [2016] AATA 3153  (1 February 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: WAILAN GROUP PTY LTD

CASE NUMBER: 1504290

DIBP REFERENCE(S): BCC2014/3191575

MEMBER: Lesley Hunt

DATE: 1 February 2016

PLACE OF DECISION: Brisbane

DECISION: The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 01 February 2016 at 9:48am

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 9 March 2015 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 25 November 2014. 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)(d)(i) of the Regulations because the delegate was not satisfied that the nominee will be employed on a full-time basis in the nominated position for at least two years; and r.5.19(4)(a)(ii) as the delegate was not satisfied there is a need for the nominator to employ a paid employee to work in the position under the nominators direct control.
5. The applicant appeared before the Tribunal on 15 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Liangliang LI, who is the applicant's nominated employee. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
6. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

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

9. 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.
10. The nominating business (the applicant), Wailan Group Pty Ltd., was represented at the hearing by Mr Cheng Tsung Liao. The applicant applied for approval of the nominated position of Corporate General Manager (ANZSCO 111211). Information provided with the application, and confirmed by the applicant at the hearing, is that the Wailan Group was established in Australia on 19 March 2014. The company specialises in the design, fabrication and construction of conveyance, storage and other equipment relevant to the mining and other related industries.
11. A number of documents were submitted with the application including: a Certificate of Registration of the company with ASIC; the company tax file number; GST registration; Australian business number; the position description for the nominated position; copy of a lease agreement; receipt for training for 6 employees; evidence of a search for a similar position with similar salary; an organisational chart; and a business plan.
12. The business plan sets out the projected growth of the business and its relationship with a number of other organisations including Potent Mechanical and Industrial (Xiamen) Co. Ltd. At the hearing, the Tribunal sought to clarify the relationship between the Wailan Group and Potent Mechanical and Industrial. Mr Liao confirmed that Potent Mechanical and Industrial (Xiamen) Company Limited is a separate entity to the Wailan Group and stated that he is a shareholder in both companies. He owns 66% shares, a controlling interest, in Potent Mechanical and 100% shares in the Wailan Group.
13. The organisational chart for the Wailan Group identifies eight positions: the Managing Director (Mr Liao), the nominated position of General Manager, an Administration Assistant, Operations Manager, Project Engineer, and three Machine Operators. Mr Liao confirmed that all positions were vacant at time of application and at the time of the hearing, other than that of Managing Director and the nominated position of General Manager filled by the nominee.
14. The financial documents submitted with the application include the financial report for the financial year ending 30 June 2014. This indicates that the company operated at a loss of $20,191.00.
15. An employment agreement between the Wailan Group Pty Ltd and the nominee for the position of Corporate General Manager indicates that the nominated position is full time with remuneration of $200,000 per annum plus 9.5% superannuation, and that the nominee will commence in the nominated position “upon approval of visa”.
16. The Tribunal explained that all the requirements of either regulation 5.19(3) or regulation 5.19(4) have to be met for the review application to be successful. The Tribunal explained that the requirements of r.5.19(4) include the training requirements, the terms and conditions of employment for the nominated position, and the Tribunal had to be satisfied that the company had the financial capacity to satisfy these requirements.
17. In response to the Tribunal’s questions, the applicant clarified that he is directly involved with both companies and is in regular communication with the nominee who works under his direct control. He confirmed that the nominated employee is currently working in the position however, her capacity to fulfil the requirements of the position is limited due to restrictions on her current visa. He stated that the Wailan Group’s capacity to employ other employees was adversely affected by the visa restrictions on the nominee. He stated that there are many potential projects for the Wailan Group as Australia has rich coal resources, which are needed by China. He made the decision to invest in Australia as he wants to combine the resources of both China and Australia as Australia has coal and China needs coal. A central part of his plan is to make the equipment in Australia and sell the equipment to South-East Asian countries.
18. Ms Li’s evidence to the Tribunal included that her current visa restricts her to short, multiple stays in Australia and this means she is currently unable to employ staff. She confirmed that she knows Mr Liao through their work in China.
19. The Tribunal asked Mr Liao to provide the company’s financial records for the 2015 financial year as the Tribunal has to be satisfied that the company is in a position to pay the salary of the nominated position and meet the relevant training benchmarks.
20. Subsequent to the hearing the applicant submitted: Company Extract showing that the Wailan Group Pty Ltd is wholly owned by Mr Liao; evidence of potential projects for the company; an auditable training plan from Chandler Training; a bank receipt for the payment of training to Dynamic Management; forecasted payroll for the next twelve months; signed and lodged BAS for the June 2015 quarter; signed financial statements for the 2015 financial year; employment contracts for two Australian citizens for part-time Administrator Officer positions; and evidence of long-term training plans.
21. The profit and loss statement for the financial year ended 30 June 2015 indicates that the Wailan Group Pty Ltd operated at a loss of $20,191 for the 2014 financial year and a loss before income tax of $62,593 for the 2015 financial year and an accumulated loss of $82,784 for the 2015 financial year. .
22. The Tribunal notes that whilst Mr Liao has an active interest and controlling financial interest in both Wailan Group Pty Ltd and Potent Mechanical, the two companies are nonetheless separate entities. The financial information in relation to Wailan Group Pty Ltd indicates that the company operates at a loss. Based on the information before it the Tribunal cannot be satisfied that the Wailan Group Pty Ltd has the financial capacity to employ a Corporate General Manager full time with remuneration of $200,000 per annum plus 9.5% superannuation for two years. Accordingly the Tribunal cannot be satisfied that regulation 5.19(4)(d)(i) can be met.
23. As sub-regulation 5.19(4)(d)(i) cannot be met the Tribunal is not required to consider the remaining sub-regulations in regulation 5.19(4).
24. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements of r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

DECISION

25. The Tribunal affirms the decision under review to refuse the nomination.

Lesley Hunt
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval of nominated positions (employer nomination)

...

(2) 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

(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;

(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 at a skill level of ANZSCO skill level 1, 2 or 3;

(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).