Burford Consulting Pty Ltd (Migration)

Burford Consulting Pty Ltd (Migration) [2018] AATA 2685 (10 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Burford Consulting Pty Ltd
CASE NUMBER:  1727312
DIBP REFERENCE(S):  BCC2016/2355199
MEMBER:Peter Emmerton
DATE:10 July 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 10 July 2018 at 2:19pm

CATCHWORDS
Migration – Nominated sponsorship – Regional Sponsor Migration Scheme – Direct Entry nomination scheme – Employment on a full-time basis for at least 2 years – Business expansion into the Chinese community – Visa applicant’s multi language skills – Detailed knowledge of business activities – Practice and Procedure – Joint hearing with visa applicant – Decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 245AR
Migration Regulations 1994 (Cth), r 1.13A, 1.13B, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 October 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant, Burford Consulting Pty Ltd, applied for approval of the position of Accountant ANZSCO 221111 on 14 July 2016. Mr Zhuoqun Wang was sponsored by the applicant to work in the nominated position.
The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (4)(d)(i) of the Regulations because the applicant has not demonstrated that the employee will be employed on a full-time basis for at least the next 2 years.
The applicant, represented by Mr Greg Burford, the joint Managing Director, appeared before the Tribunal on 10 July 2018 in a joint hearing with MRT file ref 1730779 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Zhuoqun Wang, the nominee. The Tribunal found all those presenting evidence to be credible and appeared to answer questions in an open and honest manner without obfuscation.
The applicant was represented in relation to the review by its registered migration agent via telephone.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity operates an Accounting and Financial Advisory Practice in Hyde Park, South Australia.
The practice is gradually expanding its operations into the Chinese community.
The Organisation Chart shows the position reporting directly to the Director.
There are a total of 8 staff reporting to the joint Founding Directors.
The nominee is to be employed on a full-time basis from the time of visa grant, for a minimum of 2 years with no impediment to ongoing employment.
The updated Employment Agreement was signed, by the nominating entity and the visa applicant on 5 July 2018. The terms and conditions remained materially the same as the original contract submitted to the delegate in the application made in 2016.
The nominee’s salary package exclusive of Superannuation is $50,000.
Mr Wang has a Bachelor of Commerce Degree and a Master of Commerce Degree. Both degrees were completed in Australia, he also has an overall IELTS score of 7.0.
Mr Wang’s duty statement shows that he is expected to performs tasks which align with the tasks outlined by ANZSCO for an Accountant (General), 221111.
The Tribunal questioned Mr Burford in detail about the need for Mr Wang’s position and why it could not be filled by an Australian citizen. The challenges associated with hiring and subsequently retaining an Accountant with Mr Wang’s qualifications, into their relatively small organisation, in this industry, which competes with a number of global corporate entities and mid-size practices, were clearly articulated. Evidence was provided to the Tribunal of the salary determination, recruitment processes, and associated advertising in 2016 and subsequent attempts at recruiting for this role. The Tribunal was also furnished with a comprehensive list of the applicants for the role and their suitability for the roles key competencies. Whilst it is possible to perform the role without Mandarin Language ability, it is self-evident that Mr Wang’s multi-lingual skills are an advantage in relation to the ongoing expansion of the practice into the Chinese community.
The Tribunal perused popular employment web sites prior to the hearing in order to ascertain the current state of the market in this field. The Tribunal observed a substantial number of related vacancies, in a wide variety of industries, locations and establishments currently under recruitment. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position. This may add further weight to the argument that recruitment had proven challenging.
It was explained to the Tribunal that a total of 15 applications were received in response to the recruitment processes with only 4 applicants deemed potentially suitable. It was also discussed at the hearing, that the visa applicant’s multi-lingual skills were seen as an advantage but the more pressing need was for an experienced accountant. The Tribunal also notes that an RCB Certificate has been issued by the relevant SA based certifying body following their acceptance of the compliance measures undertaken by the nominating entity. The certificate is dated 15 June 2016.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2). The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Practice Manager under direct control of the applicant. Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal was provided with 6 of the applicant’s most recent Business Activity Statements, the 3 most recent Tax Returns, ASIC Registration and the Tribunal checked the status of the listed ABN. In addition, a substantial number of receipts were provided to demonstrate the set-up, the ongoing concern and maintenance of the business property owned by the nominating entity. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the applicant has not demonstrated that the employee will be employed on a full-time basis for at least the next 2 years. The 3 Tax returns and the 6 most recent Business Activity Statements corroborate the assertion that the business is in a healthy state and growing steadily. The Tribunal notes that the 2015, 2016 and 2017 Tax Returns show a growth in taxable income of 80% over those 3 years. The taxable income for FY 2017 was in excess of AUD$231,000.00. Part of the reason for this substantial growth is the diversification into the Chinese market at a time when it has not reached maturity, coupled with refreshed marketing.
Evidence was produced, prior to the hearing, to demonstrate the purchase of a practice property located in Hyde Park, an inner city suburb in South Australia. This was verified by the Tribunal.
The Tribunal questioned the visa applicant in depth to test his knowledge of the business skills required to function in the business and engage in the activities claimed by the nominating entity. The answers showed a clear and detailed knowledge in regards to the day-to-day required business activities. The Tribunal is satisfied that the business will be able to sustainably employ the nominee for the required 2 year period.
The Tribunal has had regard to the original signed Letter of Engagement dated 14 March 2016 and the most recent Letter of Engagement dated 5 July 2018 and is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s initial annual salary at $50,000 exclusive of Superannuation, is reflective of his experience relevant to the nominated position. Additionally the Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence presented by the nominating entity at the hearing. The Tribunal is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace. Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. When the Tribunal questioned parties regarding workplace conditions, it was evident that both parties were cognisant of workplace relations expectations. Furthermore, they demonstrated an understanding of appropriate employee conditions as a way of retaining employees and subsequently provide quality service. The Tribunal has reflected on the fact that this industry employs a well-educated workforce with clear workplace expectations, which operates in a competitive environment. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are located in regional Australia;
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size and scope of the nominating entity’s business operations, the length of the visa applicant’s employment, experience and qualifications and is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal is satisfied the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The position of Accountant (General) nominated by the applicant is referred to in ANZSCO as a skill level 1 position. The delegate did not question that this requirement had been met. The Tribunal considered the tasks found in ANZSCO for this position and compared them to the job description provided by the applicant.
Detailed questioning was undertaken by the Tribunal of both the nominating entity and the visa applicant in order to arrive at a clear and comprehensive understanding of he information before it. The visa applicant was able to demonstrate to the Tribunal that he is expected to regularly undertake the tasks of the nominated position and anticipates that he will continue to do so. The Tribunal is satisfied that the position located in South Australia, can properly be classified as a position for a Accountant (General), ANZSCO Skill Level 1. The Tribunal therefore finds that the nomination satisfies r.5.19(4)(h)(ii)(D) of the Regulations.
The Tribunal has had regard to Form 1404 issued by a RCB (Department of Manufacturing, Innovation, Trade Resources and Energy), dated 15 June 2016 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position 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 in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2018] AATA 2685

10 July 2018

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Remedies

Procedural Fairness

Appeal