1603961 (Migration)

[2016] AATA 4397

1603961 (Migration) [2016] AATA 4397 (20 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  DJJ SERVICES PTY LTD

CASE NUMBER:  1603961

DIBP REFERENCE(S):  BCC2015/2450089

MEMBER:Glen Cranwell

DATE:20 September 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 20 September 2016 at 12:04pm

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 3 March 2016 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 24 August 2015. 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 nomination 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 applicant did not satisfy r.2.72(10)(f).

4. Mr Sam Samarakoon appeared on behalf of the applicant before the Tribunal on 20 September 2016 to give evidence and present arguments.  

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

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. The applicant nominated Mrs Fenando (the nominee) for the position of Accountant (ANZSCO 2211-11).  The applicant operates a cleaning business.

10. The ANZSCO description of the duties of Accountant is as follows: 

    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:

    oassisting in formulating budgetary and accounting policies

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

    oconducting 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

    oexamining operating costs and organisations' income and expenditure

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

    oproviding financial and taxation advice on business structures, plans and operations

    opreparing taxation returns for individuals and organisations

    oliaising with financial institutions and brokers to establish funds management arrangements

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

    omaintaining internal control systems

    omay appraise cash flow and financial risk of capital investment projects

    
    Occupations:

    221111 Accountant (General)
    221112 Management Accountant
    221113 Taxation Accountant

    
    221111 ACCOUNTANT (GENERAL)

    
    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

11. The ANZSCO description for the duties of Bookkeeper is as follows:

    UNIT GROUP 5512 BOOKKEEPERS

    
    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.
    In Australia:

    AQF Certificate II or III (ANZSCO Skill Level 4)

    
    In New Zealand:

    NZ Register Level 2 or 3 qualification (ANZSCO Skill Level 4)

    
    At least one year of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    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

    
    Occupation:

    551211 Bookkeeper

    
    551211 BOOKKEEPER

    
    Maintains and evaluates records of financial transactions in account books and computerised accounting systems.

    Skill Level: 4
    Specialisation:

    Financial Administration Officer

12. The Tribunal has used these as a guide only.

13. The following submissions in relation to the genuineness of the position were provided to the Department:

    Our client instructs that there is a need within the organization for a full-time Accountant, arising from an increase in business.

    Previously an external professional accountant was engaged on an intermittent basis. Due to increase in contracts and business operations, both in principal contractor and sub-contractor basis, the need for an in-house accountant became apparent and the more sound financial decision in terms of operating expenses. It is the most cost-effective to its operation rather than outsourcing and paying for professional accounting services;

    As per the Position Description (uploaded to ImmiAccount), the Accountant will carry out typical accountant duties such as preparation of BAS statements and financial year statements. Whilst those duties are on an intermittent basis as required by the ATO, being quarterly and annually, and a requirement for daily to weekly tasks in preparation of those events, a significant portion of the working week will be made up of:

    ·Invoicing and receipting principal contractors and sub-contractors for working orders carried out to meet cleaning contracts and working orders;

    ·creating monthly reports of the financial status of the company, based on income and expense claims; and

    ·reporting on profit forecasts based on company performance at any period of time based on sales and marketing initiatives and/or company baselines, and reporting to the Director on such;

    ·ongoing assessments of the company financial status based on ever-changing contract relationships (i.e. examining operating costs and income and expenditure) , and reporting to the Director on such;

    ·entering accounting data and preparing reports;

    ·undertaking financial audits to ensure payments to sub-contractors are consistent with contract obligations;

    ·ongoing financial and taxation advice regarding business structure, plans and operations, and reporting to the Director on such.

    Our client instructs that a salient feature of the cleaning industry is its sensitivity to the economy and general market reactions. Where contracts are lost ongoing f re-assessment is necessary to ensure the company remains successful in a competitive market. Where new contracts are obtained, financial advice is required so as to take advantage of and make an investment of the financial gain during that particular time in business activity.

    We refer you to the Organisational structure (uploaded to ImmiAccount), noting that whilst the Accountant reports to the Owner on all financial matters, as the company continues to grow and a full-time Contact Administrator and Sales & Marketing Manager is employed she will be require to work collaboratively with those professional colleagues to ensure an understanding of the full scope of the company's financial situation in context of the current market climate, business activities so as to report on opportunities for company growth or maintenance.

    The Director has used such an approach to his second cleaning company and found it a success and point of difference to his organization by having a full-time Accountant to ensure the every day accounting requirements are conducted, but to also ensure projections and forecasts remain pertinent to current organization and market trends.

14. The Tribunal was provided with financial statements and projections relating to the applicant prepared by EsPee Accountants.

15. At the hearing, Mr Samarakoon told the Tribunal that the applicant had 4 employees and 15-20 contractors.  The employees consisted of himself and his wife, a sales and marketing manager, and the nominee.  The nominee is working as a part-time accountant for 20 hours per week.

16. The Tribunal asked Mr Samarakoon to list the nominee’s duties.  He stated that they were to:

    ·prepare invoices to the applicant’s clients, and receipt payments;

    ·prepare payslips and arrange payments for contractors;

    ·prepare BAS;

    ·travel with him to meet clients.

17. Mr Samarakoon stated that the financial statements are currently prepared by EsPee Accountants as the nominee does not have time to prepare them only working 20 hours per week.  He envisages that she will prepare them in the future.

18. The Tribunal put to Mr Samarakoon that the position may elements of accounting in it, but it appeared that the nominee’s duties were more consistent with that of a Bookkeeper.  Matters such as invoicing, payroll and BAS statements appear to squarely fall within the scope of the duties performed by a Bookkeeper.  Even if the nominee did prepare a yearly tax return and/or financial statements, these would only represent a small portion of her duties.  Given the nature and size of the business, the Tribunal might doubt whether the applicant was employed as an Accountant.

19. Mr Samarakoon stated that he had 2 other businesses, which were different companies.  One was a motel and the other a restaurant.  He envisaged the nominee would do 5-10% of her work for these companies if the nomination is approved.  The other businesses have been operating with a bookkeeper.

20. In considering if the position associated with the nominated occupation of Accountant is genuine, the Tribunal accepts that the nominee would carry out some aspects of the work of an Accountant on a periodic basis.  However, the Tribunal is not satisfied that the scale and activities of the business are such that a designated Accountant performing the range of duties as described in ANZSCO and at the skill level indicated is necessary to the operations of the business. The Tribunal considers that the majority of the duties undertaken by the nominee – such as invoicing, payroll and BAS statements – are more consistent with that of a Bookkeeper. 

21. Based on Mr Samarakoon’s evidence at the hearing, and taking into account the other written material provided to the Department and the Tribunal, the Tribunal is not satisfied that the position includes a significant majority of the range and skill level of tasks as set out in ANZSCO for the occupation of Accountant. The Tribunal does not accept that the duties of the position amount to the position of Accountant, having regard to the size and nature of the business and the duties described in the ANZSCO guide.

22. For these reasons the requirements of r.2.72(10)(f) are met.

23. 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

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

    Glen Cranwell
    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.