1506425 (Migration)

[2016] AATA 3407

1506425 (Migration) [2016] AATA 3407 (2 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  BOT ANZSA PTY LIMITED

VISA APPLICANT:  Mr Richard Grantham

CASE NUMBER:  1506425

DIBP REFERENCE(S):  BCC2015/278041

MEMBER:Kate Millar

DATE:2 March 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 02 March 2016 at 3:10pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant Mr Grantham a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Grantham applied for the visa on 27 January 2015.  His nominated occupation is accountant.  The sponsor is BOT ANZSA Pty Ltd (BOT ANZSA) which according to its director, Mr Mark Duddy, is a sub-contractor on the installation of fibre for the National Broadband Network. 

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visa on 21 April 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was snot satisfied Mr Grantham has the skills, qualifications and employment background necessary to perform the nominated occupation.

5. Mr Duddy from BOT ANZSA appeared before the Tribunal on 17 December 2015 to give evidence and present arguments.  

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da), which states that the applicant has the skills, qualifications and employment background that the Minister considers necessary for the tasks of the nominated occupation. 

8. In this case Mr Grantham seeks to be employed by BOT ANZSA as an accountant. 

   Skills, qualification and employment background of the applicant

9. Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is accountant. 

10. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) sets out the indicative skill level for an accountant as being a bachelor degree or higher qualification and states that is some instances relevant experience and/or on the job training may be required in addition to formal training.  While ANZSCO is not binding on me, I consider this a useful indication of the skill level required for an accountant. 

11. The tasks of an accountant listed by ANZSCO are:

    ·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

12. Mr Grantham has worked for Wakefield Council as an accountancy officer since 2007.  In summary, the tasks of this positions provided in the reference from Wakefield Council are:

    ·Preparation and presentation of Treasury Management monitoring information and statistical information for; internal strategy meetings, external clients covered by service level agreements, Treasury Management consultant and Government departments.  This information Council and other clients to make prudent investment and borrowing decisions.

    ·Managing the Council’s cash flow and ensuring all borrowing and investment are in line with Council approved strategy.  This includes ensuring that the Council maximises income from investments and minimises any borrowing and resulting interest. And managing long-term government borrowing and restructuring existing government loans.

    ·Liaising with financial institutions, money market funds and brokers regarding both investments and borrowings.

    ·Involvement in the annual close of accounts and ensuring compliance with statutory requirements, including the provision of clear working papers for external audit.

    ·Undertaking daily bank reconciliations. 

13. A reference from Ms Brenda Powell was provided, who states she was Mr Grantham’s line manager for more than 20 years.  She said Mr Grantham was responsible for managing the investments of over 100 million pounds for the Council and 70 million pounds for the Police Authority and ensuing timely payment of debt in compliance with the Treasury Management Strategy, carrying out daily cash flow calculations and investing spare cash or undertaking short term borrowing, yearend closure of accounts and in year  budgeting, liaising with brokers, financial institutions, government departments and internal and external auditors in relation to management of funds, and maintain accurate information on accounting and banking systems. 

14. BOT ANZSA provided a membership application form completed by Mr Grantham for membership with the Institute of Public Accountants (IPA) in Australia.  Evidence of membership of IPA was not provided.  On being asked if Mr Grantham had a skill assessment as an accountant, Mr Duddy said he had applied for membership of IPA and is a member of the Association of Accounting Technicians in the United Kingdom.  Mr Duddy said Mr Duddy had been granted membership of the IPA.  After the hearing Mr Duddy provided a membership certificate for Mr Grantham as an associate member of the Institute of Financial Accountants after the hearing.  No outcome was provided from Mr Grantham’s application for membership of IPA Australia.   

15. The submission for BOT ANZSA states that the immigration website lists that at least five years of relevant experience may substitute for the formal qualification, and that Mr Grantham has fifteen years of relevant experience.  Mr Duddy says the sponsorship was approved on the basis that they were seeking a person who had a diploma and at least five years’ experience.  As pointed out at hearing, this is not what is stated in ANZSCO which refers to experience in addition to a degree level or higher level qualification in some instances.  While I acknowledge that the tasks being undertaken by Mr Grantham include some of the tasks required by an accountant, and that this work experience is relevant to the tasks of an accountant, I must also be satisfied he has  the qualifications and skills required for the position.

16. In Australia, the Institute of Public Accountants (IPA) and CPA Australia offer skills assessments for accountants.  In acknowledgement of his work experience and despite him lacking the necessary qualifications, it was offered to Mr Duddy for Mr Grantham to undertake a skills assessment with either of these bodies to establish he had the skills for the occupation.  BOT ANZSA was provided two months after the hearing to provide this assessment.  Mr Duddy agreed to seek a skills assessment from one of these bodies, and he said he was happy to seek this assessment. 

17. No further documents have been provided by BOT ANZSA to the date of this decision, and BOT ANZSA has not sought further time to provide an assessment for Mr Grantham. 

18. Having considered all the information before me, I am not satisfied Mr Grantham has the skills, qualifications and employment background necessary to perform the occupation. BOT ANZSA has not provided any further information after the hearing that satisfied me he has the skills, qualifications and employment background necessary for the occupation of accountant. As a result, he does not meet cl.457.223(4)(da) of Schedule 2 of the Regulations.

19. The requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that Mr Grantham would be able to satisfy the specific criteria for those streams.

    DECISION

20. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Kate Millar
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

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

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (ea)if:

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

    (ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant 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 by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant; and

    (iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.