Acare Business Solutions Pty Ltd (Migration)

[2021] AATA 2472

Acare Business Solutions Pty Ltd (Migration) [2021] AATA 2472 (29 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Acare Business Solutions Pty Ltd

CASE NUMBER:  1826563

HOME AFFAIRS REFERENCE(S):          BCC2017/2347732

MEMBER:Glenn O'Brien

DATE:29 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 29 June 2021 at 11:19am

CATCHWORDS

MIGRATION – approval of a nomination – position of Internal Auditor – genuine position – nominee does not hold required registration or licensing – applicant’s preferred knowledge of the laws of Thailand – no replacement during the nominee’s absence – position operates at an operational level – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 140, 359
Migration Regulations 1994, rr 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Home Affairs on 23 August 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 30 June 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(f) because the delegate was not satisfied the position associated with the nominated occupation is genuine.

4. On 17 March 2021 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act inviting them to provide current information addressing the relevant criteria under reg 2.72 of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, financial records, ASIC information, AUSTRAC reports, an employment contract, a job description, organisational chart, advertisements, external auditor information, Institute of Internal Auditors membership, and a standard business sponsorship (SBS) approval. A further submission was received after the hearing on 20 June 2021. All material received prior to and after the review hearing has been duly considered by the Tribunal.

5. On 3 June 2021 the applicant requested the hearing scheduled for 18 June 2021 be postponed given the proximity with the end of financial year, and the reporting requirements of the business impinging on the applicant’s preparation for hearing. On 8 June 2021 the Tribunal refused the request for postponement of the hearing noting:

   that while the end of financial year may give rise to additional compliance matters, it is not an accounting business, the owner is unlikely to be solely dedicated to the preparation of reports and the hearing is for only 2.5 hours some two weeks before the end of financial year. Notably, the Director has already filed substantive submissions and documents in preparation for the hearing on 31 March 2021.

6. Mr Prakarn Prasitwattisak (Mr Prakarn), a director, appeared before the Tribunal on 18 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee. At the hearing the applicant was invited to make any further submissions in relation to the request to postpone the hearing and did not do so, electing to proceed with the hearing.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.

   Position must be genuine

10. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

11. The applicant business has two distinct operations, a restaurant and a foreign exchange service trading as OWN Money Services. The nominated position is within Unit Group 2212, Internal Auditor (ANZSCO 221214) as set out below:

    UNIT GROUP 2212 AUDITORS, COMPANY SECRETARIES AND CORPORATE TREASURERS

    AUDITORS, COMPANY SECRETARIES AND CORPORATE TREASURERS conduct audits of accounting systems, procedures and financial statements, manage corporate funding and financial risk, and administer and review corporate compliance activities.

    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. In the case of Corporate Treasurers and Company Secretaries, at least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1).

    
    Registration or licensing may be required.

    Tasks Include:

    oarranging, giving notice of and attending meetings of directors and shareholders

    oadvising organisations' governing boards on matters concerning compliance with stock exchange listing rules, relevant legislation and corporation practice

    osupervising organisations' share capital by preparing documents and share issues, and handling share transfers

    ocontrolling treasury and treasury systems and establishing and reviewing risk management objectives and treasury policies

    oidentifying, managing and reporting on financial risks

    oassisting with equity management, debt management, securities and taxation planning issues

    ocollecting, analysing and interpreting information on the financial standing, cost structures and trading effectiveness of organisations

    odevising, re-organising and establishing budgetary cost control and other accounting systems such as computer-based systems

    oconducting audits and investigations and preparing financial statements and reports for management, shareholders, and governing and statutory bodies

    oevaluating the cost effectiveness and risks of operational processes, activities, policies and systems

    oreporting to management on the existence and effectiveness of the system of internal controls

    oestablishing audit objectives, and designing and implementing audit methodologies, processes and audit report criteria

    Occupations:

    221211 Company Secretary
    221212 Corporate Treasurer
    221213 External Auditor
    221214 Internal Auditor

    
    221214 INTERNAL AUDITOR

    Alternative Title:

    Audit Officer

    
    Examines, verifies, evaluates and reports on financial, operational and managerial processes, systems and outcomes to ensure financial and operational integrity and compliance, and assists in business process reviews, risk assessments, developing deliverables and reporting progress against outcomes. Registration or licensing is required.

    Skill Level: 1

12. The nominated position corresponds to ANZSCO 221214 Internal Auditor. Notably, the corresponding ANZSCO position requires registration or licensing. While the nominee holds a tertiary qualification and is an Associate Member of the Institute of Internal Auditors Australia Mr Prakarn conceded the nominee is not licensed or registered. Mr Prakarn told the Tribunal he did not believe the nominee is on the Register of Auditors maintained by ASIC. The absence of licensing or registration is a matter relevant to whether the position associated with the nominated position is genuine.

13. The applicant has provided consolidated accounts for both the restaurant and foreign exchange business. The Tribunal does not consider an internal auditor is ordinarily relevant to a restaurant business. The accounts indicate that the fees received by OWN Money Services for the financial year ending 2019 totalled $439,169 and for the financial year ending 2020 totalled $438,169. Notably, the salaries and rent for 2019 were $225,812 and $342,867 respectively. For the year ending 30 June 2020 the salaries were $342,867 and rent was $126,440. The expenses for salaries and rent exceeded the fees generated by the business. In post-hearing submissions, it is evident that the income of the business has increased in the current financial year, however there is no information in relation to expenses.

14. Mr Prakarn told the Tribunal he advertised for the position but other applicants did not have the relevant skills as they needed to have knowledge of the laws of Thailand given that the business remits money to Thailand. The Tribunal does not accept that evidence as Mr Prakarn told the Tribunal that funds are remitted to a third party and the regulations applicable to the applicant are Australian regulations.

15. Mr Prakarn also told the Tribunal that the nominee was on leave without pay for three to four months but the business continued to operate during that period. While Mr Prakarn told the Tribunal that the manager still obtained her advice and she worked very little, the fact that an auditor was not required within the applicant business, and was not replaced during the nominee’s absence indicates to the Tribunal it is not a genuine position.

16. Mr Prakarn told the Tribunal the nominee provides advice to him in relation to business expansion of the restaurant business and the development of a website in relation to OWN Money Services.

17. Mr Prakarn told the Tribunal that the nominee manages the transactions, customer details and the risk of transactions as well as looking after the exchange rate for the company.

18. The Tribunal notes the nominee undertakes checks of financial transactions and utilises monetary unit sampling, prepares regulatory reports as well as undertaking random checks, as well as reporting and undertaking some training on regulatory requirements.

19. The role of the nominee in advising the director in relation to the establishment of a website and business expansion is more closely aligned to an advisory function rather than an auditing function.

20. In considering the size and nature of the business, the absence of registration or licensing of the nominee, and the position and tasks of the nominee as a whole, the Tribunal considers the nominee operates at an operational level within the business, being intimately involved in operational processes, rather than examination and verification of them, which is akin to a financial control or compliance function rather than undertaking the predominant tasks of an internal auditor.

21. For these reasons the requirements of reg 2.72(10)(f) are not met.

22. 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

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

    Glenn O'Brien
    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)is any of the following:

    (i) a standard business sponsor;

    (ii) a person who has applied to be a standard business sponsor;

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

    (iv) a party to negotiations to a work agreement (other than a Minister); and

    (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.

    (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

    (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 the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; 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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or 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.