D.B. Mcdowell Pty Ltd (Migration)

[2022] AATA 2986

D.B. Mcdowell Pty Ltd (Migration) [2022] AATA 2986 (14 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  D.B. McDowell Pty Ltd

REPRESENTATIVE:  Mr Jonathan Charles Granger (MARN: 0318801)

CASE NUMBER:  1911634

HOME AFFAIRS REFERENCE(S):          BCC2018/620022

MEMBER:Wan Shum

DATE:14 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 14 July 2022 at 4:17pm

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – Accountant – nominee is genuinely carrying out the full duties and responsibilities–genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside

LEGISLATION

Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19

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 18 April 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

3. In this case, the application for approval of a nomination was made by D.B. McDowell Pty Ltd (the nominator) on 6 February 2018 for the position and occupation of Accountant (General) under the Direct Entry nomination stream. Ms Chenda Ny was identified as the person the nominator wished to employ for the position. Ms Ny lodged a Subclass 187 visa application in respect of this nomination.

4. The delegate refused the application for approval on the basis that the application had not demonstrated 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, nor was the delegate satisfied that 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 subparagraph. Finally, it did not appear that a relevant regional certifying body had advised the Minister about the matters required under the Regulation. The delegate concluded that the nomination did not satisfy reg 5.19(4)(h)(ii)(C), (D) and (F) of the Regulations.

5. Ms Ny’s visa was then refused because there was no approved nomination.

6. Both parties have sought review of these decisions and are represented in relation to the review by the same registered migration agent.

7. Mr Dougal McDowell appeared on behalf of the nominator before the Tribunal on 16 June 2022 by videoconference using Microsoft Teams. The Tribunal also received oral evidence from Ms Ny using MS Teams. The representative participated by videoconference from a different location.

8. 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

9. 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 reg 5.19(4). For the nomination to be approved, all the requirements must be met.

10. The nomination is for the position of Accountant (General) to be employed by the nominator at an address in Bathurst, New South Wales. It was claimed when the nomination was made that there was not an Australian employee doing the same work as the nominated position.

11. The nominator operates under the name McDowell Accountants, with Mr McDowell being the Principal Accountant. The position is for an Assistant Accountant. According to ASIC records, Mr McDowell is currently the sole Director of the business.

12. The organisation chart provided on review shows that there are only 2 employees, being Mr McDowell and the nominee in the position of Assistant Accountant.

13. Mr McDowell described the business as a small practice focusing on tax compliance, with around 500 clients consisting of individuals, companies and partnerships. Their work involves preparing and lodging tax returns for individuals, preparing BAS returns for companies every quarter and preparation of financial accounts. Mr McDowell spoke of the nominee doing the wages and payroll for clients and he spoke of this being a specialist area. He referred to the expertise and knowledge required and the need to have knowledge of employment law including Fair Work Australia Awards, NSW Workers Compensation and an understanding of the difference between paying wages and contracting. The nominee gave evidence regarding her duties and responsibilities which was on the whole consistent with Mr McDowell’s evidence. When asked, Mr McDowell confirmed that the role involved some bookkeeping duties but explained that he also had to take on this work given the size of the practice. It is claimed, and the Tribunal accepts, that bookkeeping tasks are, and would be, a small proportion of the duties and tasks of the position of Assistant Accountant and requires the person to hold the formal qualifications of an accountant.

14. The Tribunal will now address each of the requirements for approval of the nomination below.

    The application is compliant: reg 5.19(4)(a)

15. Regulation 5.19(4)(a) also 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).

16. The material on the departmental file is that the application was made on form 1395 (internet) and accompanied by the fee prescribed in reg 5.37.

17. A written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act was provided.

18. Accordingly, the requirement in reg 5.19(4)(a) is met. The Tribunal has thus proceeded to consider the remaining requirements for approval of the nomination below.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

19. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. Information before the Tribunal includes business activity statements, financial reports, tax returns, organisation chart, an ASIC current and historical company extract, and oral evidence given at the hearing.

20. The Tribunal finds that the nominator is actively and lawfully operating an accounting practice in New South Wales and directly operates that business.

21. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour-hire: reg 5.19(4)(c)

22. 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. There is no information to indicate that the nominator is involved in labour-hire activities to unrelated businesses. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

    Terms of employment of the visa holder: reg 5.19(4)(d)

23. 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.

24. The initial employment contract provided with the application reflected a salary of $865 per week. The most recent employment contract reflects that the salary will be $59,852, which is confirmed in a letter of support from Mr McDowell dated 10 June 2022. The terms and conditions indicate that the position will be 2 years’ full-time and they do not expressly exclude the possibility of an extension.

25. In terms of the financial capacity of the nominator, the Tribunal has been provided with the financial statements for FYE 30 June 2020 and FYE 30 June 2021, noting that these were prepared by the nominator itself, and the company tax returns for the same periods. The financial statements reflect that the income from professional fees fell by around $30,000 but profit increased by roughly the same amount across these financial years. Mr McDowell satisfactorily addressed the Tribunal’s queries regarding the financial statements during the hearing.

26. When asked whether there was any impact from the COVID‑19 pandemic, and whether accounts owing to the nominator were being paid by clients in a timely manner, Mr McDowell said that there had been times when clients had not paid but that he did not spend much time chasing fees.

27. Having considered the evidence given, the Tribunal is of the view that the income and expenses reflect a small accounting practice which is financially sound. Ms Ny has been engaged as an employee since the application was made, and the Tribunal notes that her increase in salary has been part of the expenses of the business since that time. The Tribunal is of the view that the nominator does have the financial capacity to employ the nominated position for at least 2 years.

28. Having considered the terms of the most recent employment contract and the financials of the business to date, the Tribunal finds that the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and condition of employment: reg 5.19(4)(e)

29. 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.

30. According to the information provided, there are no Australian citizens or permanent residents performing equivalent work in the same workplace at the same location.

31. In terms of whether the salary payable for this position would be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, the Tribunal was informed that there was no Fair Work Award that applies. The Tribunal was provided with evidence of job advertisements for comparable positions in regional New South Wales and accepts that the salary offered is in line with the employment market in these locations.

32. The Tribunal finds that the salary payable and terms and conditions would be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

33. Accordingly, the requirements of reg 5.19(4)(e) are met.

    No adverse information known to Immigration: reg 5.19(4)(f)

34. 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 regs 1.13A and 1.13B.

35. The Tribunal became aware of a charge against Mr McDowell in respect of the 1998 float of the NSW TAB reported in the Western Advocate online publication updated on 9 November 2012 at 11:15 am, first published 24 October 2002 at 6:29 am.[1] In the article, it refers to Mr McDowell being charged with more than 100 counts of making false statements to obtain money through an alleged TAB Ltd share scam. The article does not include details of the outcome. Mr McDowell claimed that the matter was dismissed in Court and that he did not engage in any illegal activity but probably would have done things differently on reflection. The Tribunal notes that his current registration with the Taxation Practitioners Board and the Certified Practising Accountants (CPA) appear to reflect that there were no matters recorded against him, and Mr McDowell confirmed that he had to explain himself to a panel before the CPA but no action was taken against him and there is nothing to indicate the contrary on the records available publicly.

    [1] >

    The Tribunal is not aware of any information known to Immigration which would come within the meaning of ‘adverse information’. Accordingly, the requirements of reg 5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

36. 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.

37. There is nothing before the Tribunal which indicates that the applicant has not complied with workplace relations laws that would apply. In the circumstances, it considers 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. Accordingly, the requirements of reg 5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h)

38. Regulation 5.19(4)(h) contains a number of alternative requirements. Where the position and nominator’s business is located in regional Australia, it is a requirement that there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and a regional certifying body has advised the Minister about certain matters relating to the position.

39. The nomination was made on the basis that the position and business is in regional Australia and that the requirements of reg 5.19(4)(h)(ii) were met. The business is located in Bathurst 2795, which is a postcode of New South Wales specified in IMMI 17/059 as ‘regional Australia’. The requirements of reg 5.19(4)(h)(ii)(A) are therefore met.

40. As to whether there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has considered the evidence including how the nominee came to work for Mr McDowell. Their evidence was that the nominee’s sister, who is an Australian citizen, introduced them, and that she lives in the Bathurst region. The Tribunal understands that the nominee’s parents have made contributory parent visa applications and plan to move to Bathurst. Given these circumstances, the Tribunal has carefully assessed whether there is a genuine need to employ a paid employee to work in the position of Assistant Accountant. On balance, the Tribunal considers that there is a genuine need based on the size and nature of the business. The Tribunal thus finds that the requirements of reg 5.19(4)(h)(ii)(B) are met.

41. In terms of whether the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, the Tribunal notes that it has been over 5 years since the application was made in February 2017. It was submitted that there had been attempts to hire local Australians to work but that these attempts had failed. Mr McDowell claimed that he had used different employment agencies in the past who had sent people over for interviews, but they were not qualified and appeared to be attempting to meet requirements imposed for unemployment benefits. He also claimed that while there was a university in the region, the people who completed accounting qualifications generally left to work in Sydney. Having regard also to the recent assessment by the regional certifying body, the Tribunal is prepared to accept that it is difficult to recruit an Accountant in the Bathurst region and finds that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area. It therefore finds that reg 5.19(4)(h)(ii)(C) is met.

42. In regard to the tasks of the position, the Tribunal finds that the duties of the position of Assistant Accountant, which include preparation of tax returns and assisting the Principal Accountant with preparing BAS and financial reports, align with the ANZSCO description of Accountant (General) and accepts the claims and evidence provided that the nominee has already been carrying out these duties. The evidence is that the nominee has expertise with wages and payroll, prepares tax returns for individuals, companies and partnerships. Ms Ny was able to give detailed answers as to what is involved in completing these tasks during the hearing, including managing different accounting software used by clients. Based on the tasks currently undertaken by the nominee, which will be the tasks of the position, the Tribunal finds that the tasks to be performed in the position correspond to an occupation, Accountant (General), which is listed in ANZSCO 221111, has a skill level of 1 and is also listed in the relevant instrument (IMMI 17/058). There are no additional specifications made in the relevant instrument in relation to this occupation. Therefore, the requirements of regs 5.19(4)(h)(ii)(D) and (DA) have been met.

43. Finally, the RDA Central West, which is a regional certifying body (RCB) located in the same State as the position, advised the Minister on 16 June 2022 about the matters in regs 5.19(4)(e) and 5.19(4)(h)(ii)(B) and (C). The RCB was satisfied that there is a genuine need for the nominator to employ the nominee; that the position could not be filled locally by an Australian permanent resident or citizen, and that the terms and conditions of the employment will be no less favourable than that which would be provided to an Australian citizen or permanent resident. This advice is current, and the Tribunal finds that the requirements of reg 5.19(4)(h)(ii)(F) have been met.

44. Accordingly, the requirements of reg 5.19(4)(h) are met.

    Conclusion

45. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

46. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Wan Shum
    Member