1512346 (Migration)

1512346 (Migration) [2016] AATA 3743 (14 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Yang YE
Ms Lulu Wang
CASE NUMBER:  1512346
DIBP REFERENCE(S):  BCC2015/1631380
MEMBER:Kate Millar
DATE:14 April 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 14 April 2016 at 2:20pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Ye and Ms Wang applied for Temporary Business Entry (Class UC) visas so that Mr Ye could work for Perth Meat Supplies Pty Ltd (Perth Meat Supplies) as an accountant. Their visa applications were refused as a delegate of the Minister for Immigration was not satisfied that Mr Ye’s intention to perform the occupation was genuine or that the position associated with the nominated occupation of accountant was genuine. Mr Ye and Ms Wang have applied for a review of the decision to refuse their visa applications.
The visa applicants applied for the visa on 8 June 2015, and the delegate of the Minister for Immigration refused the applications under s.65 of the Migration Act 1958 (the Act).
Mr Ye appeared before the tribunal on 22 March 2016 to give evidence and present arguments. The tribunal also received oral evidence from Mr Sing Tet Wong, who is a director of Perth Meat Supplies. The applicants were represented in relation to the review by their registered migration agent. The representative attended the tribunal hearing.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. This requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. In this 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.
The delegate refused to grant the visas on 4 September 2015 on the basis that cl.457.223(4)(d) was not met because the delegate was not satisfied that the nominated position of accountant is necessary to the operation of the business, and therefore was not satisfied that the position associated with the nominated occupation is genuine. In coming to this conclusion, the delegate noted that the company had four employees and there was no evidence that the position was vacant. The delegate was not satisfied there had been any changes to the business that would warrant a full time accountant. The existing accountancy fees in the company financial statements for using external accounting was $1,200 in a financial year which the delegate found did not support a requirement for a full time accountant in the business. The delegate considered the existing external accountant with a book keeper would meet the needs of the business.
Genuine intention
Clause 457.223(4)(d) requires that the applicant’s intention to perform the occupation is genuine and the position associated with the nominated occupation is genuine. In issue in this matter is whether the position associated with the nominated occupation is genuine.
Mr Ye and Mr Wong gave generally consistent evidence about what the company does, the names of their largest customer and the tasks of the position, and I have no reason to doubt that Mr Ye is working for Perth Meat Supplies. My concern with this matter is whether the tasks that he performs for Perth Meat Supplies are the tasks of an accountant or those of a book keeper.
Mr Ye and Mr Wong also sought to rely on work Mr Ye does for Mr Wong in relation to a property development business. That business is operated by a different company, Maxmerry Pty Ltd. Maxmerry is a separate legal entity, and there is nothing before me that would show Maxmerry made an approved nomination or is a standard business sponsor as would be required by cl.457.223(4)(ba). It follows that I do not consider work done for Maxmerry to be relevant to whether the position associated with the nominated occupation is genuine.
In looking at whether the position associated with the nominated occupation is genuine, I have looked at the tasks of an accountant specified in the Australian and New Zealand Standard Classification of Occupations (ANZSCO), which list the tasks of an accountant as:
·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
Mr Ye said he started working part time for Perth Meat Supplies in June 2015. Perth Meat Supplies is a meat wholesaler that sells to local restaurants. It reports a significant turnover of over $2.5 million in its 2015 company tax return, albeit with a taxable income of $2,959.
Mr Ye’s tasks were described as taking orders by telephone or by SMS, and checking the inventory to see if they have the stock. He makes an invoice out to the client and prints it to send with the delivery. The accounts are held on smart phones which automatically connect with the invoice system, and the drivers get the customer to sign the invoice. Mr Ye records the invoice and the acknowledgement of the invoice on the accounting system, which he said was a MYOB system. He said Mr Wong decided which computer system they use.
At the end of each month he issues accounts for the customers and records payments. He reports to Mr Wong any problems with receipt of payment or non-payment as he says it is important to manage the cash flow of the company.
Mr Ye said his other tasks involve inventory management as the shelf life of the stock is difficult to control, and they need to sell the stock within one to two weeks of receiving it. He reports on the inventory to Mr Wong.
Mr Ye says he prepares business activity statements. Tax returns are prepared by an external accountant. Mr Ye said because it is mostly family working at the business, wages are paid in cash. He was unable to identify whether the company loans money either to its directors and shareholder or from its shareholders and directors. The financial statements provide by Mr Ye through his representative show loans from a director to the company of $327,013 which is the majority of the liability of the company. Mr Ye was not able to identify the biggest expense of the company, and said he would guess that it was electricity and water. The financial statements show that after wages the biggest expense of the company is rent, which was $51,820 in the 2015 financial year. Mr Ye could identify that the company banks with Westpac, but not how many accounts they hold. Mr Ye said the company does pay superannuation and income tax is paid by PAYG withholding. He did not know about any workers compensation insurance or any other insurance the company holds.
On being asked what ledgers he maintains for the company, Mr Ye said accounts receivable, payments of accounts, the mortgage expenses and the vehicle expenses. He said he records vehicle expenses after the driver provides him with a receipt and he issues cash before saving the record in a document for the tax return.
On being to identify the accounting policies of the company, Mr Ye said trying to take payments within 30 days, and to pay the supplier once a week. He himself had not implemented these policies, and had not made any recommendations about changing accounting policies.
Mr Ye develops inventory control reports which he describes as recording the quantity of goods received and the quantity despatched which he sets out in table using excel. He reports cash flow which he describes as the receipts by the company, how many accounts receivable have not been paid, and how many accounts are payable by the company.
Mr Ye could not identify how profits are used by the company, but said profits may be used to buy new stock and looking for new customers. He could not identify the liabilities of the company. He prepares accounts receivable reports for the external accountant at the end of the financial year.
In terms of the accounting advice he has provided to the company, Mr Ye said one customer owes $240,000 and that he could advise the company not to receive orders from this customer because his credit is low. On being asked to give an actual rather than hypothetical example of accounting advice he had given, Mr Ye said that as this customer only pays $10,000 per week to the company and always orders in excess of $10,000 he had advised the company to accept the customer’s order but not deliver the quantity ordered, for example delivering half of the order. On being asked if there would be other legal issues with this course of action, he said there would not be as sometimes cuts of meat are placed on a back-order. He also identified that he had advised the company to ignore complaints of customers when the customer only orders a small amount.
Mr Ye said the visa had been refused because the company uses an external accountant, however he says they need an internal accountant to manage stock and that inventory control is part of the accounting system.
On being asked how he would distinguish his role from that of a book keeper, he said that a book keeper only records and cannot give advice. He said that from the accounts receivable he can anticipate the need for stock in the future.
Mr Wong said that Mr Ye’s tasks are to take orders from customers, receive payments, supplier terms and conditions and payment, receive credit applications for new customers and issuing invoices. Mr Wong said the company does not use MYOB, it uses “invoice to go” and excel to prepare reports and invoices. He said the company has used ‘invoice to go’ since Mr Ye started. The employees of the company are himself, his co-director and his brother Kiat Sing Wong.
Mr Ye could not identify any policies I would consider accounting policies that he had advised the company to follow. He does not prepare financial statements. He does prepare some reports about stock and cash flow, and says he prepares the BAS statements. He does not prepare financial statements, tax returns and does not conduct investigations or audits, advise on the purchase or sale of businesses, mergers, capital financing, suspected fraud, insolvency or taxation. He is not involved with the financial statements and did not have knowledge of the major costs of the business. He does not advise whether financial reports comply with statutory requirements. He is not involved in liaising with the bank. While there are computer-based systems, Mr Ye was not involved in selecting these systems. He does have some responsibility for maintaining internal control system by recording and reporting on cash flow and stock. He does not advise on capital investment and therefore does not appraise cash flow and financial risk of capital investment.
Having carefully considered all of the information before me, and the tasks of the position described by Mr Ye and Mr Wong I am not satisfied that the position is that of an accountant. As a result I am not satisfied that the position associated with the nominated occupation is genuine, and the requirements of cl.457.223(4)(d) are not met.
It follows that 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 Ye would be able to satisfy the specific criteria for those streams.
As a result, the decision in relation to Mr Ye is affirmed. As Mr ye does not meet the primary criteria, Ms Wang cannot meet the secondary criteria, and the decision in relation to her is also affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
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.

[2016] AATA 3743

14 April 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction