1411762 (Migration)

[2016] AATA 3842

1411762 (Migration) [2016] AATA 3842 (28 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  EFFECTIVE SUPERMARKET WORK PTY LTD

CASE NUMBER:  1411762

DIBP REFERENCE(S):  BCC2014/341092

MEMBER:Adrian Ho

DATE:28 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 28 April 2016 at 6:03pm

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 30 June 2014 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 5 February 2014. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the position associated with the nominated occupation is not  genuine.

4. A representative of the applicant company appeared before the Tribunal on 14 April 2016 to give evidence and present arguments.

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

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

   Position must be genuine

8. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

9. At hearing the parties were informed that the nomination application was refused by the delegate as not meeting this requirement (despite the delegate’s use of r.2.72(10)(aa)) and this was the major issue that should be addressed by the parties at hearing and that would be decided by the tribunal.

10. The tribunal observed to the parties that one of the matters which the applicant has certified, and is required to certify, is that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in ANZSCO[1] or specified in an instrument.

    [1] Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1

11. It was suggested that the “position” refers to the job and its tasks in the nominating business; while the “nominated occupation” refers to the occupation as described through its indicated tasks in ANZSCO.

12. It was suggested that a deliberation of this requirement requires a consideration of the need for the position in the business, and a comparison of the tasks and nature of the position and the tasks and nature of the nominated occupation as indicated by ANZSCO.

13. It was pointed out that in relation to the analogously worded visa criterion in cl.457.223(4)(d)(ii) the Court had recently indicated[2] that the following questions may be relevant:

    a.What is the occupation that has been nominated in relation to the applicant?

    b.How is the nominated occupation described in ANZSCO, and what are the tasks ANZSCO associates with the nominated occupation?

    c.What are the tasks the applicant claims he or she has been employed or will be employed to perform?

    d.Are the tasks the applicant claims he or she has been employed or will be employed to perform in that position tasks that are equivalent or substantially equivalent to the tasks associated with the nominated occupation, as specified by ANZSCO?

    e.If (d) is answered in the affirmative, has the applicant in reality performed the tasks he or she has been engaged to perform, or will the applicant perform the tasks he or she will be engaged to perform?

    [2] Khan v MIBP [2016] FCCA 333

14. The occupation of accountant is in Major Group 2: Professionals and the ANZSCO-indicated tasks of the occupation are as follows:[3]:

    [3] Include:

    ·assisting in formulating budgetary and accounting policies

    ·preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies

    ·conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation

    ·examining operating costs and organisations' income and expenditure

    ·providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements

    ·providing financial and taxation advice on business structures, plans and operations

    ·preparing taxation returns for individuals and organisations

    ·liaising with financial institutions and brokers to establish funds management arrangements

    ·introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems

    ·maintaining internal control systems

    ·may appraise cash flow and financial risk of capital investment projects

15. A long discussion took place during which the company representative was shown both folios 44 and 64 of the tribunal file and it was suggested that two separate position descriptions had been submitted which were not identical.  He said that he wrote the position description at f.44 and his migration agent wrote the version at f.64, which was now the preferred version.

16. He was taken through the tasks written in the description in detail and despite the version at f.64 being more contemporary he wished to make corrections as follows:

    a.The position does not prepare BAS statements as is written, which statements are prepared by an external accountant – the position only records figures which are handed to the external accountant;

    b.Instalment activity statements are in fact simply consolidate full year BAS figures which are done by the external accountant

    c.The position does not prepare or submit tax returns – this is done by the external accountant;

    d.The position does prepare profit and loss statements, but they are approved by the external accountant;

    e.Ensure compliance with GST obligations involves paying to the tax office what is owed in terms of GST as determined by the external accountant;

    f.There are no further tasks of the position which are not contained at f.64 which is a complete description of what the position entails;

17. The company representative was given a copy of the ANZSCO entries for the occupations referred to below and it was suggested that the following tasks in the position descriptions at f.64 and the older description at f.44 corresponded to a task of an occupation in ANZSCO other than Accountant:

    a.Process payroll (UNIT GROUP 5513 PAYROLL CLERKS[4]);

    [4] bank reconciliations (UNIT GROUP 5511 ACCOUNTING CLERKS[5]);

    c.Reconcile GST (UNIT GROUP 5512 BOOKKEEPERS[6]);

    d.Prepare Business Activity Statements (UNIT GROUP 5512 BOOKKEEPERS:” may be required to prepare forms reporting business tax entitlements and obligations such as the amount of goods and services tax paid and collected”[7]);

    e.Prepare Instalment Activity Statements (UNIT GROUP 5512 BOOKKEEPERS[8]);

    f.Prepare financial documentation including fortnightly cashflow statements (UNIT GROUP 5512 BOOKKEEPERS[9]);

    g.Monthly consolidated budget report (UNIT GROUP 5512 BOOKKEEPERS: preparing and producing financial statements, budget and expenditure reports and analyses using account books, ledgers and accounting software packages[10]);

    h.Prepare financial documentation including financial statements (UNIT GROUP 5512 BOOKKEEPERS: preparing and producing financial statements, budget and expenditure reports and analyses using account books, ledgers and accounting software packages[11]);

    i.Review effectiveness of expenses and report on cash flow (UNIT GROUP 5512 BOOKKEEPERS[12] and UNIT GROUP 5511 ACCOUNTING CLERKS[13]);

    j.Review internal controls and report on control environment (UNIT GROUP 2211 ACCOUNTANTS);  however the company representative stated, and it is accepted, that the position now longer includes this task and the task as conceived by the business is not related to the occupation of accountant;

    k.Oversee compliance with occupation health and safety guidelines and other local laws (UNIT GROUP 2513 OCCUPATIONAL AND ENVIRONMENTAL HEALTH PROFESSIONALS[14]).

    [5] >

    Most of these tasks are retained for the position as written at f.64 and in the company representative’s oral evidence.  Some of the tasks relate to the alternate position description submitted at f.44.

18. Nonetheless, these tasks still form the bulk of the tasks of the position and it was suggested that the above occupations to which they relate (aside from that in Unit Group 2513) are in ANZSCO Minor Group 551 and Major Group 5: Clerical and Administrative Workers.

19. It was suggested that the ANZSCO-indicated tasks of an Accountant illustrate that the functions of an accountant are more strategic, structural and policy-focused that the more day-to-day functions of the three other occupations.

20. The company representative was given a copy of the ANZSCO entry for Accountant and asked to peruse the tasks indicated in ANZSCO.  He was invited to identify which of the ANZSCO-indicated tasks of an accountant were taken in by the tasks of the position at f.64 and as amended in his oral evidence noted above.

21. After discussion he conceded that the only ANZSCO-indicated tasks taken in by the position was “examining operating costs and organisations' income and expenditure”, and that he could not identify any other ANZSCO-indicated task of an accountant that was also a task of the position.

22. On his evidence, the business delivers trolley collection services and related logistics to supermarkets and other stores in Australia.  The position the subject of the nomination takes in a broad range of tasks of bookkeepers and payroll and accounting clerks, as defined in ANZSCO. 

23. The tribunal is satisfied that the business needs someone to perform these tasks.  However, as continually suggested throughout a long hearing the tribunal finds that the vast bulk of the tasks of the position relate to the occupations of bookkeepers and payroll and accounting clerks.  The use of an external accountant, who was named by the company representative, is further evidence suggesting that accountant tasks required by the business are outsourced and the expenses of the external accountant are reflected in the submitted profit and loss statement.

24. The migration agent representing the company sought to argue that the tribunal should place less weight on the ANZSCO-indicate tasks of UNIT GROUP 2211 ACCOUNTANTS and more weight on the sentence describing the actual nominated occupation: 221111 ACCOUNTANT (GENERAL) which reads:

    Plans and provides systems and services relating to the financial dealings of organisations and individuals, and advises on associated record-keeping and compliance requirements. Registration or licensing is required.

    Skill Level: 1

    Specialisations:

    Financial Analyst

    Insolvency Practitioner

25. The tribunal observed that this short description of the nominated occupation was a general description of the occupation and did not indicate any tasks per se.  It also suggested that ANZSCO did not specifically indicate any tasks for any of the three occupations in the unit group and that the tasks indicated for the unit group as a whole appeared to be relevant to each of the three occupations in the group.

26. The parties were invited to identify indicated tasks that might only apply to one particular occupation in the unit group.  They did not identify any such tasks.

27. The tribunal considers as suggested that the ANZSCO-indicated tasks for each occupation in the unit group are as listed for the unit group as a whole, because each of the occupations is a manifestation of an accounting function and the tasks are indicated in such a way as to make them applicable to each occupation.

28. For the reasons above, the tribunal finds as suggested that the position is not equivalent to nor substantially equivalent to the nominated occupation of accountant and the position associated with the nominated occupation is not genuine.

29. For these reasons, r.2.72(10)(f) is not met.

30. It is also the case that the certification made that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in ANZSCO or specified in an instrument is not an accurate certification.

31. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

32. The Tribunal affirms the decision not to approve the nomination.

    Adrian Ho
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

    (1)This regulation applies to a person who is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister);

    who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

    (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that the person is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister).

    (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

    (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

    (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

    (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

    (7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (7A)In addition to subregulation (6):

    (a)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

    (b)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

    (iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

    (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

    (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

    (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

    (b)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a standard business sponsor;

    the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

    (c)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a party to a work agreement;

    the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (9)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (10)If the person is a standard business sponsor — the Minister is satisfied that:

    (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

    (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and

    (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

    (c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and

    (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

    (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ASCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ASCO; or

    (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

    (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ANZSCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ANZSCO; or

    (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

    (f)the position associated with the nominated occupation is genuine; and

    (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

    (i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

    (ii)      if:

    (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

    (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

    (iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

    (iv)     unless subparagraph (ii) applies—the holder:

    (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

    (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

    (h)either:

    (i)       the person will:

    (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

    (B)give a copy of that contract to the Minister; or

    (ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

    (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

    (a)the terms and conditions of employment; and

    (b)the base rate of pay, under the terms and conditions of employment;

    that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

    (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

    (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

    (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

    (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

    (c)the Minister considers it reasonable to do so.

    (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

    (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

    (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

    (B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

    (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

    (B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

    (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.