1512758 (Migration)

[2016] AATA 3571

1512758 (Migration) [2016] AATA 3571 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yanxia Jiang

CASE NUMBER:  1512758

DIBP REFERENCE(S):  BCC2015/1930746

MEMBER:Christopher Smolicz

DATE:18 March 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 18 March 2016 at 3:12pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 September 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant contravened a condition of her visa by not working in the occupation listed in her approved nomination. In a related decision the Department took action against the applicant’s sponsoring employer (Australian Natural Foodstuff Pty Ltd) under s. 140M of the Act imposing sponsorship bars against the applicant’s sponsor. The applicant’s sponsoring employer has also applied to the Tribunal to review the Department’s decision to impose sponsoring bars.[1]

   [1] See MRD file ref. 1509961

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the applicant’s visa should be cancelled.

4. On 17 September 2015 the applicant applied to the Tribunal to review the delegate’s decision to cancel her visa. The applicant provided the Tribunal with a copy of the delegate’s decision with the review application.

5. The applicant appeared before the Tribunal on 1 March 2016 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 is attached to the applicant’s visa. This condition requires the holder of the visa to only work in the occupation listed in the most recent approved nomination for the holder of the visa: 8107(3)(a)(i).

9. The applicant is a citizen of China. She initially arrived in Australia in October 2008 as the holder of a Subclass 573 student visa. In about November 2011 the applicant completed a Master of Accounting at the University of South Australia. In March 2012 she was granted a Temporary Graduate Subclass 485 visa.

10. On 12 September 2013 the applicant was granted the Subclass 457 visa which is subject of the current application. The standard business sponsor who nominated the applicant in the most recent approved nomination for the visa is Australian Natural Foodstuff Pty Ltd (ANF). Mr Hao Huang is a director and 100 per cent shareholder in ANF. Mr Haung has used AFN as a vehicle to sponsor himself for the position of Corporate General Manager (ANZSCO 11121) at ANF and is currently the holder of a Subclass 457 visa.

11. ANF’s sponsorship nomination was approved on 12 September 2013 for the applicant to work for ANF in the occupation of Accountant (General) (ANZSCO 221111). ANZSCO provides the following definition for the occupation of accountant.

    1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, First Edition, 2006  

    UNIT GROUP 2211 ACCOUNTANTS
    ACCOUNTANTS plan and provide accounting systems and services relating to taxation and the financial dealings of organisations and individuals, and advise on associated record-keeping and compliance requirements.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
    
    Registration or licensing may be required.

    Tasks 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

12. The applicant said that after she completed her studies she undertook four months unpaid work experience for ANF. ANF subsequently advertised for a full-time accountant and the applicant was successful in obtaining the position and commenced employment with ANF in November 2013.

13. On 21 August 2014 Compliance officers of the Department commenced monitoring of ANF. The monitoring focussed on the period 1 November 2013 to 30 June 2014. On 22 February 2015 the Department issued a Notice of Intention to Take Action (the notice).

14. According to the delegate’s decision, information obtained during the monitoring of ANF and evidence provided in response to the notice indicated that the applicant’s duties are more consistent with the duties of the less skilled occupation of Clerical and Administrative Worker (ANZSCO 599999) and Bookkeeper (ANZSCO 551211) rather than the occupation for Accountant.  

15. ANZSCO provides the following definition for the occupation of bookkeeper:

    BOOKKEEPERS maintain and evaluate records of financial transactions in account books and computerised accounting systems.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    Tasks Include:

    okeeping financial records, and maintaining and balancing accounts using manual and computerised systems

    omonitoring cash flow and lines of credit

    opreparing and producing financial statements, budget and expenditure reports and analyses using account books, ledgers and accounting software packages

    opreparing invoices, purchase orders and bank deposits

    oreconciling accounts against monthly bank statements

    overifying recorded transactions and reporting irregularities to management

    omay be required to prepare forms reporting business tax entitlements and obligations such as the amount of goods and services tax paid and collected

16. According to ANZSCO a Clerical and Administrative Worker (ANZSCO 599999), is someone who provides support to managers, professionals and organisations by organising, sorting, manipulating and retrieving information. ANZSCO duties include:

    oadministering contracts, programs and projects

    osetting, reviewing and controlling office functions

    operforming clerical, secretarial, organisational and other administrative functions

    oentering, processing and editing text and data

    ogreeting clients and visitors, and responding to inquiries and requests for information

    oproducing, recording and evaluating financial, production, stock and statistical information

    oreceiving, processing and sending mail, documents and information

17. The applicant said she was paid an annual salary of $53,900 and worked a 38 hour week as an accountant. The Tribunal noted that according to a signed employment contract dated 24 June 2013 she was to be paid $52,000. The applicant maintained that she was paid $53,900 and could not recall being paid $52,000. The applicant said that when her visa was cancelled in September 2015 she ceased working for ANF and has since obtained employment as an accountant with Steve Dimopoulos, Accountant and Business Advisor.

18. The applicant said she recalled that her employment contract was reviewed in March 2015 to reflect an annual salary of $54,000. The applicant said that after the Department commenced monitoring the business it became apparent that the salary was too low and it was increased to $54,000 to reflect the market salary for an accountant.

19. The applicant said that at the time she commenced employment Mr Hao Huang was the director and General Manager of ANF. The company also employed Mr Rabih Moughelbay as a Product Co-ordinator. There was a female employee called Coco who left shortly after the applicant commenced in the business. The applicant was uncertain of Coco’s qualifications or position. The applicant said that a person called Daniel also worked from Melbourne for ANF but left soon after she commenced employment.

20. According to the delegate’s decision, the applicant is claimed to have acknowledged that she does bookkeeping, profit and loss, bills, invoices and banking.

21. The Tribunal questioned the applicant about her day to day duties at ANF. The applicant said that she carried out the following duties:

    ·     provide financial advice to Mr Huang in relation to when to purchase US currency

    ·     monitor cash flow and provide 12 monthly projections regarding ANF’s financial position

    ·     prepare yearly budget plans for cost of sales for products sold by ANF such as honey, olive oil and wine.

    ·     prepare monthly profit and loss

    ·     ensure the company complies with its accounting standards

    ·     monitor accuracy of book-keeping entries

22. The Tribunal found the applicant to be a poor witness at the hearing. Her evidence was confused and contradictory. Some of her evidence was inconsistent with information she had provided to the Department. For example, in her written response to the notice the applicant claimed that she provided financial and taxation advice on business structures and its operations and prepared taxation returns. At the hearing the Tribunal questioned the applicant about her involvement in the provision of taxation advice to ANF. The applicant conceded that she did not prepare the BAS or the company income tax returns (ITR) and that all taxation related work was prepared by an external accountant.

23. The Tribunal told the applicant that it was surprised that she would not prepare the BAS given that she was employed as an in-house accountant working for a small business such as ANF. The applicant said that Mr Huang wanted the BAS done by an external accountant and that’s what happened. The applicant said that she did not have any dealings with the external accountant and could not provide the Tribunal with the name.

24. According to information located on the Department’s file, when questioned by the Department’s compliance officers, the applicant said she did not prepare quarterly BAS and this was done by the external accountant who she contacts once a year and knows as “Cheryl” but claimed not to know her family name or the company she worked for.

25. When questioned at the hearing the applicant said that she would prepare relevant company figures and use a “drop box” and these would be assessed by Cheryl. After further questioning the applicant acknowledged that Cheryl was Mrs Huang’s wife who lives in Sydney. The applicant said that she did not think that Cheryl was an employee of ANF but was as a volunteer worker. The applicant said that Cheryl was working as a bookkeeper and Cheryl would only have dealings with the external accountant. 

26. The Tribunal noted that as an in house accountant she was best placed to deal with the tax agent, not Cheryl. The Tribunal finds it significant that the applicant does not work in collaboration with AFN’s external accountant and is made to work in isolation.

27. The Tribunal asked the applicant if she knew who was the authorised signatory for the BAS. The applicant said that it was a matter for Cheryl and Mr Huang and she did not know that Mr Huang signed the BAS. The Tribunal found it was surprising for a company accountant to have no knowledge of who was authorised as signatory for tax purposes.

28. The Tribunal noted that this was an unusual business relationship and asked the applicant about her dealings with Cheryl. The applicant said she has only met Cheryl once or twice and if there was a need they would speak over the telephone. For example if Cheryl required supportive invoices which were not entered into the drop box and she was able to get all sales figures to her.

29. The Tribunal asked the applicant to provide information about the wages paid by ANF to Mr Huang and Mr Moughelbay. The applicant said that she did not know what wages were paid by ANF and said that all work relating to superannuation and payroll were carried out by Cheryl in Sydney. The Tribunal notes that when she was questioned by the compliance officers the applicant claimed that she did the monthly payroll for Adelaide.

30. The applicant said that in November 2014 the office computer was stolen and she no longer had access to MYOB. She conceded that only from this point did she spend time putting sales figures into Excel so that they could be accessed by Cheryl via drop-box. The Tribunal asked the applicant if they had obtained a new MYOB program. The applicant said that they did not purchase new MYOB software and the Excel spreadsheet worked well for the business. The Tribunal finds it unusual that since November 2014 the applicant, who was employed to work in the position of accountant, would not have access to MYOB and would continue to enter figures into Excel and send them by drop box to Cheryl who would brief the external accountant.

31. The Tribunal questioned the applicant if she was aware of the reported taxable income of the ANF. The Tribunal found the applicant’s evidence vague and evasive. After further questioning, the applicant conceded that she did not have anything to do with the company ITR and did not give any taxation advice to ANF. The applicant claimed that she only assisted in preparing ITR by providing figures to Cheryl. She conceded that she did not know about the declared profits of the company for tax purposes she only knew the accounting profits which were different to the taxable profits. She conceded that she did not see the company ITR and said that Cheryl paid tax owing to the ATO and that Cheryl claimed GST credits on exports made by ANF.

32. The Tribunal noted that Mr Huang travelled overseas extensively. For example, according to information located on the Department’s file, since Mr Huang’s subclass 457 visa was approved on 27 September 2012 he has spent 71 per cent of his time offshore. The Tribunal asked the applicant to explain how Mr Huang’s travel expenses were dealt with by the ANF. The applicant could not answer the Tribunal’s questions and said Cheryl dealt with such issues.

33. The Tribunal referred the applicant to the delegate’s decision where she is reported to have said “I do order, I purchase sales documents, filing and some support for our manager. Office support, some of the simple admin things.” The applicant claimed it was a misunderstanding. The applicant said she only deals with orders and sales invoices for the purpose of working out the profit margin.

34. In written submissions provided to the Tribunal the applicant claimed “the delegate lost sight of the fact that bookkeeping and all other mentioned tasks were performed only on a temporary basis as there was a theft at the office premises and all of the computers…which has MYOB and other accounting essentials were stolen. It was only in the absence of those softwares and on the asking of my employer I had performed these additional duties for the time being. Also I never “regularly” said that I did bills, invoices and banking.”

35. The Tribunal notes that the written submissions claiming that the bookkeeping tasks were only performed on a temporary basis because of the theft of the office computer are inconsistent with the applicant’s evidence that ANF did not consider it necessary to purchase new MYOB software since November 2014.

36. The Tribunal noted that ANF was a small business and it would appear that she was the only employee who would attend the office on a daily basis. The Tribunal asked the applicant if she performed some bookkeeping or clerical tasks. The applicant maintained that she did not do any book-keeping entries and this work was done by Cheryl via drop box. It was only when Cheryl travelled to China did she take on some of her bookkeeping duties. For example putting sales figures into MYOB or spread-sheet. The Tribunal asked the applicant to explain who would normally put invoices into the system when Cheryl was in Australia.  The applicant maintained it was done by Cheryl via drop box.

37. The Tribunal noted that according to information located on the Department’s file, ANF had an office in Sydney. The Tribunal asked the applicant if she was aware of the lease cost of premises used by ANF in Adelaide and Sydney. The applicant said she did not know the location of the Sydney office and did not know the lease costs of any of the premises used by ANF.

38. In written submissions the applicant stated:

    “…I had always regularly performed the duties of an Accountant during my tenure with my employer and my impression …was always that I was not in breach of condition 8107 as long as I was performing my main primary duties but was doing some extra work over and above those duties on the asking of the employer. I had never said that I was only performing the duties of bookkeeping, invoices and bills and not my primary duties as an accountant…..Being and employee it is impossible to say “NO” to the employer at times to perform a few duties in addition to the main duties.” In conclusion the applicant submitted, “The sponsor has allegedly failed to comply with a sponsorship undertaking or obligation and I being the primary sponsored person, am not at fault.”

39. In written submissions made to the Department in response to the notice, the applicant submitted that as the primary sponsored person she is not at fault and “is indeed the victim of the sponsor’s failure to comply (failure to comply with the obligations to ensure equivalent terms and conditions) and also imposing extra dues upon me.”

40. The Tribunal finds that one of the central tasks of an accountant is providing taxation advice and preparing taxation returns such as BAS and ITR. The Tribunal accepts, however that if a business is large and its affairs complex it may be practical to brief these duties to an external accountant who would directly liaise with the in-house accountant. The Tribunal finds that the applicant works in a small business with three employees where she is the main employee attending the Adelaide office on a daily basis. The Tribunal finds it inconsistent that the applicant who was employed as full-time accountant had limited knowledge of AFN’s taxation affairs. The Tribunal finds it surprising that having regard to the size and scope of AFN’s business these tasks were not attended to by the applicant in house and within her knowledge. The Tribunal finds it even more unusual that the applicant who claims to be working in the position of accountant has never spoken to the external accountants and does not know their name. The Tribunal finds it inconsistent that the applicant claims to be working as an accountant but has not had access to MYOB software since November 2014 and relies on a drop box to provide information to Cheryl who briefs and provides instructions to the external accountant.  The Tribunal does not accept the agent’s submissions that bookkeeping tasks were performed only on a temporary basis because of the theft of office computers. The Tribunal finds that the accounting tasks performed by the applicant such as providing advice on US currency, monitoring cash flow and proving 12 monthly budgets was limited. The Tribunal finds it difficult to accept that the applicant’s claim that she ensures the company complies with its accounting standards when she has never spoken to the external accountant, claims to speak to Cheryl about once a year and has limited knowledge of the companies tax affairs, payroll and expenditure on wages, travel and accommodation.

1. The Tribunal finds that the applicant’s core duties were keeping financial records on excel, maintaining and balancing accounts using manual and computerised systems, monitoring cash flow and lines of credit and preparing financial statements on the cost of sales associated with products such as wine, olive oil and honey. The Tribunal finds these duties are consistent with the occupation of bookkeeper.

2. In conclusion the Tribunal finds that the applicant was not working in the occupation of an Accountant.

3. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

   Consideration of discretion

4. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

5. The Departmental guidelines cover such matters as:

   ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

   ·the extent of compliance with visa conditions

   ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

   ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

   ·past and present conduct of the visa holder towards the department

   ·if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

   ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

   ·whether there would be consequential cancellations under s.140

   ·whether any international obligations would be breached as a result of the cancellation

   ·any other relevant matters.

6. The applicant specifically came to Australia as an international student to study accounting. She has successfully obtained a Master of Accounting from the University of South Australia and has now been studying and working in Australia for about eight years as the holder of a temporary visa.

7. The Tribunal notes that since September 2015 the applicant has been working as an accountant for a local accounting business. She is in the process of completing her CPA program and is being mentored by her current employer. According to the Department’s records her current employer is seeking to sponsor her for the position of accountant under the Regional Sponsored Migration Scheme.

8. The Tribunal was provided with a reference from the applicant’s current Australian employer. The employer considers the applicant a valuable employee and an asset to his business due to her Chinese language skills and ability to expand the client base of the business.

9. The Tribunal gives weight to the delegate’s finding that the applicant and her employer were co-operative during the compliance checks.

10. The Tribunal accepts the agent’s submissions that as an employee working for ANF it would be difficult for the applicant to refuse the employer’s request to perform duties other than those of an accountant.  The Tribunal accepts that these factors contributed to the applicant’s breach of her visa and were factors beyond her control and that the applicant did not set out to breach condition 8107 of her visa.

11. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

12. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Christopher Smolicz
    Member