Augustin (Migration)

[2022] AATA 899

Augustin (Migration) [2022] AATA 899 (31 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mrs Ruksha Augustin

Mr Jeraj Moses Rajaratnam

REPRESENTATIVE:  Mr Don Susantha Katugampala (MARN: 9601070)

CASE NUMBER:  1906541

HOME AFFAIRS REFERENCE(S):          BCC2018/5767721

MEMBER:Warren Stooke AM

DATE:31 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

·cl 482.212 of Schedule 2 to the Regulations; and

·cl 482.311 of Schedule 2 to the Regulations.

Statement made on 31 March 2022 at 1:20pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Accountant (General) – approved standard business sponsor – English language requirements – sponsoring business renamed and restructured – applicant undertakes the same duties and responsibilities of the occupation – relevant qualifications – nomination approved upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 482.212, 482.311

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 6 March 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 21 December 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Accountant (General) – ANZSCO Code: 221111.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the criteria was not met by the applicant.

4.  The applicants appeared before the Tribunal on 2 March 2022 and 17 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence at the hearing of 17 March 2022 from Mr Sylvester, the owner and director of Bright Star Solutions Pty Ltd and Bright Star Cleaning Pty Ltd. 

5.  The applicants were represented in relation to the review.

6.  For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

7.  The issue in this case is whether the applicant has an approved standard business sponsor for the position of Accountant (General) – ANZSCO Code: 221111.

8.  The applicant stated that she arrived in Australia on 16 July 2014 and held a student visa.

9.  The applicant stated that she previously held a 485 visa and had qualifications as a Chartered Accountant with a Master of Professional Accounting.

10.  The applicant stated that she was employed with Bright Star Solutions Pty Ltd from 1 April 2017 and with Bright Star Cleaning Pty Ltd from 1 July 2019.

11.  The Tribunal was provided with evidence that the nominee satisfied the English language test requirements with a PTE score of 57 that was undertaken on 7 April 2018 and has completed study of a Master of Professional Accounting in the Higher Education sector. The nominee satisfies the language test requirements in the relevant instrument that would apply as a nominee for a Subclass 482 visa in the Temporary Shortage stream, as applicable.

Evidence of the Nominating Sponsor (Mr Sylvester)

12.  The nominating sponsor provided evidence that the business was registered with ASIC on 26 October 2013 as Bright Star Solutions Pty Ltd with an ABN: 34 756 265 069 and from 1 July 2019 with Bright Star Cleaning Pty Ltd with an ABN: 17 634 348 566.

13.  The nominating sponsor stated that he is the owner and director of Bright Star Solutions Pty Ltd that the business conducts commercial cleaning of council offices; childcare; and medical centres.

14.  The nominating sponsor provided evidence that the business was restructured in from 1 July 2019 and renamed Bright Star Cleaning Pty Ltd with a different ABN but with the same directors and assets and with the intention to focus on cleaning with the same staff and equipment. He stated that the business has 4 employees and approximately 25 contractors and that the nominee is the Accounts Manager.

15.  Fairfield Lawyers, the lawyers for Bright Star Solutions Pty Ltd, provided the Tribunal with the following evidence relating to a restructure of the business:

“I wish to confirm that the applicant ceased employment with Bright Star Solutions Pty Ltd on 30^th June 2019 as the company had changed to a new structure effective from 1 July 2019 own by the same shareholders and Directors.”

16.  The nominating sponsor provided evidence that the applicant was employed by Bright Star Solutions Pty Ltd as an Accounts Manager from 1 April 2017 to 30 June 2019 and with Bright Star Cleaning Pty Ltd from 1 July 2019 to the current period and undertakes the following designated duties and responsibilities:

·Analysing and reporting on the costs and revenues of the organisation.

·Reconciling, reviewing, and analysing information contained in financial reports to ensure accuracy and compliance with relevant accounting standards and statutory requirements.

·Summarise the current financial status of the organisation by collecting information, preparing balance sheet, profit and loss statement, and other reports.

·Compute taxes and prepare tax returns.

·Maintains accounting controls by preparing and recommending policies and procedures.

·Maintaining financial security by following internal controls.

·Integrating and utilising a wide range of accounting applications and tools such as MYOB, Xero, QuickBooks, Reckon and Cashflow Manager.

·Prepare the company’s budget and financial forecast and perform risk analysis.

17.  The Tribunal obtained confirmation from the nominating sponsor that the applicant undertakes the following ANZSCO Code duties for an Accountant (General):

• assisting in formulating budgetary and accounting policies
• preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies
• 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
• 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

18.   The nominating sponsor stated that he required an employee who was qualified as an accountant and was able to work with ZERO and preferably able to converse in the Singhalese and Tamil languages as most of the sub-contractors were of those language backgrounds.

19.  The nominating sponsor stated that the nominee spends all her time on accounting duties and prepares accounting documentation to be provided to the business’s accountants, Dom Care, and maintains and reconciles ZERO transactions.

20.  The nominating sponsor provided the Tribunal with a current organisation chart that identifies the nominee as Accounts Manager - ANZSCO Code: 221111.

21.  The nominating sponsor provided evidence of contracts of employment with the nominee from 1 April 2017 to 30 June 2019 for the position of Accounts Manager contingent upon the grant of a 485 visa and a current contract from 28 January 2022 with a salary of $60,000 and superannuation of $5,700.

22.  The nominating sponsor provided evidence of an IMMI approved sponsorship for the position of Accountant (General) – ANZSCO Code: 221111 from 4 February 2019 to 4 February 2024.

23.  The nominating sponsor advised the Tribunal that the nominee had been on maternity leave and working part-time from home and is earning $2,500 per month during this period.

24.  The nominating sponsor stated that the nominee is employed on a full-time salary of $60,000 and will be employed for a minimum of 2 years.

25.  The nominating sponsor stated that it was his intention to sponsor the nominee on a 186 visa if the current nomination was approved.

Genuine position and intention to perform occupation

26.  Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

27.  On the basis that the nomination of Bright Star Solutions Pty Ltd for the sponsorship of the applicant in this case was approved in a substitute decision by the Tribunal on 31 March 2022 in Case Matter: 1903513, the applicant has an approved standard business sponsor for the occupation of Accountant (General) – ANZSCO Code: 221111.

28.  For these reasons the requirements of cl 482.212(1) are met.

29.  On the basis that the primary applicant has an approved standard business sponsor, it follows that the secondary applicant is a member of a family unit that has met the required criteria.

30.  Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

DECISION

31.  The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first and second named applicants meet the following criteria for a Subclass 482 visa:

· cl 482.212 of Schedule 2 to the Regulations; and

· cl 482.311 of Schedule 2 to the Regulations.

Warren Stooke AM
Member