Cabot Square WA Pty Ltd (Migration)

Cabot Square WA Pty Ltd (Migration) [2019] AATA 5384 (9 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Cabot Square WA Pty Ltd
CASE NUMBER:  1733035
DIBP REFERENCE(S):  BCC2015/1530658
MEMBER:Peter Emmerton
DATE:9 August 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 09 August 2019 at 2:56pm

CATCHWORDS
MIGRATION – nomination of an occupation (employer nomination) – Direct Entry Nomination stream – position of Accountant (General) – tasks to be performed correspond to the specified occupation – accountancy business – terms and conditions of employment – employment market distortions – decision under review set aside
LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 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 21 December 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 applied for approval on 28 May 2015. 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)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Nor 5.19(4)(h)(i) of the Regulations because the nominated tasks do not therefore correspond to the tasks of an occupation specified by the Minister.
The applicant was represented in relation to the review by its’ registered migration agent.
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.
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.
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 runs a mid-sized accounting practice in suburban Perth, Western Australia.
The visa applicant’s qualifications, responsibilities, previous experience and attributes, clearly align with the duties associated with an Accountant (General), ANZSCO 221111.
The visa applicant possesses a Bachelor of Business (Accounting), gained from an established and well-recognised University based in Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in mid-sized professional service firms with relatively limited opportunities for advancement.
The Tribunal received and accepted evidence from the nominator of the salary determination and recruitment processes, which included associated proof of advertising over an extended time period, in support of their recruitment for the position. It also notes the statement provided by the nominator attesting to their genuine recruitment efforts and need for the position.
The Tribunal additionally accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2 year minimum period with the provision for extension. The initial nominated salary was $44,000 plus 9.5% Superannuation, which appears to be in the mid quartile of similar role’s remuneration levels. The contract is dated 15 June 2015.
The nominator states the current remuneration to be $52,500 plus 9.5% Superannuation and the fore mentioned statement is substantiated by current pay slips and a signed addendum to the initial contract, dated 1 July 2018.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a very large number of related vacancies, in a wide variety of locations and organisations 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 in this relatively geographically isolated Perth, WA location.
The Tribunal notes that a ‘Satisfied’, RCB Certificate has been issued by the relevant certifying body. The date of the certificate is 30 October 2015.
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 Accountant (General), ANZSCO 221111, under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1) 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 has been provided with a range of Business Tax Returns, Profit and Loss Statements, including those produced for FY 2017 and FY 2018, and BAS documentation, all of which correlated. The ASIC Registration details were observed by the Tribunal for this business entity. The Tribunal checked the current status of the listed ABN and perused the company web site. 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 business appears to have, substantial and increasing revenues and proportionally growing profit before Tax. It is noted that the income generated in FY 2018 was in excess of a 25% increase from FY 2017. The stability of the nominating entity in an ever increasing and highly competitive market, coupled with evidence of its’ stated Business Planning further attests to its’ ability to employ the visa applicant. Additional resilience is provided by the business diversification across multiple market segments and its affiliation with an Australia wide group. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(h)(i) is met.
The Tribunal has had regard to the Employment Agreement, which is verified by the RCB assessment and the position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from the grant of the visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. It is also noted by the Tribunal that the original application in regards to the visa applicant was nearly 4 years ago and that the nominating entity has employed him throughout that substantial period.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services, particularly in light of the challenging market place and an ongoing “war for talent”.
The Tribunal is also aware that the workforce is mobile and the specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff in order to obtain a market advantage in this tight margin business.
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 original employment contract. The Tribunal accepts that the stated current annual salary of $52,500 plus Superannuation as appropriate and is reflective of their experience relevant to the nominated position. The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. PAYG statements and the Contracts of equivalent personnel, within the business were supplied to the Tribunal. These were verified against with the Organisation Chart. It 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 or a similar 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. The Tribunal notes that 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 and the diverse nature of the business coupled with a very substantial client list. It is self-evident that the nominator cannot operate this rapidly growing business entity without a similarly growing number of employees to undertake his organisation’s endeavours. It is again noted that there are a very large number of relevant current recruitment vacancies both locally and nationally
The Tribunal 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.
Evidence was presented to the Tribunal regarding the recruitment process and the subsequent lack of suitably qualified and experienced applicants other than the nominee. The Tribunal was supplied with the resumes of 5 candidates which were considered for the role out of a total of 9 applications received during an extensive period of recruitment. In addition the nominator supplied a written explanation detailing the factors associated with suitability. The relatively isolated location in Perth, Western Australia may also provide a negative employment circumstance further limiting the potential candidate pool.
The Tribunal observes that a substantially more comprehensive suite of evidence was provided to it, than was presented to the delegate at the time of their decision. The Tribunal is also aware of the employment market distortions created by the mining industry cycles in Western Australia, which makes mid-level service industry roles challenging to fill on an ongoing basis. The Tribunal is satisfied that 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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Nor 5.19(4)(h)(i) of the Regulations because the nominated tasks do not subsequently correspond to the tasks of an occupation specified by the Minister.
The Tribunal has formed a different view. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 221111 for Accountant (General) and the stated duties of the visa applicant. The Tribunal notes that a more current and comprehensive Duty Statement has been supplied to it, than the delegate received in the initial application. The visa applicant’s relative position in the current Organisation Chart adds further support to the argument that this position is as claimed by the nominator. The Tribunal notes that the business owner appears to occupy the role of Practice Leader and subsequently is reliant upon a number of team members to support the clients serviced by his practice. This would by necessity most likely lead to a considerable degree of autonomy being associated with the role, as might reasonably be expected of an Accountant (General), in an ANZSCO 221111 level 1 designated position.
The visa applicant would be required to report performance in KPI areas, whilst seeking input from the Practice Leader or Managing Director of the business, this coincides with the Tribunal’s expectations of an Accountant (General) directly reporting to the Director of a business.
The Tribunal acknowledges this is a substantial sized and complex operation with a moderately large annual turnover and modest ROI. The Tribunal has concluded that an Accountant (General) is required in the position to which the visa applicant is assigned. By the very nature of the this business model the successful servicing of client’s needs and ongoing growth of client numbers and revenue can only be achieved by recruiting and retaining suitably qualified individuals in a relatively tight employment sector.
The position of Accountant (General), ANZSCO 221111, nominated by the applicant is referred to in ANZSCO as a skill level 1 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(i) and 5.19(4)(h)(ii).
The Tribunal has had regard to Form 1404 issued by an RCB (WA Department of Training and Workforce Development), dated 30 October 2015 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
(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 at a skill level of ANZSCO skill level 1, 2 or 3;
(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).

[2019] AATA 5384

9 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies