Financial Wealth Advisers Pty Ltd (Migration)

Financial Wealth Advisers Pty Ltd (Migration) [2018] AATA 3327 (16 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Financial Wealth Advisers Pty Ltd
CASE NUMBER:  1719453
DIBP REFERENCE(S):  BCC2016/1854373
MEMBER:Peter Emmerton
DATE:16 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 16 July 2018 at 3:52pm

CATCHWORDS
Migration – Employer Nomination – Approval of nomination – genuine need for employee – Current state of the market – employment contract – taxation activity statements – letters of engagement – upper end of salary range – understanding of appropriate workplace relations – new RCB – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 245AR
Migration Regulations 1994 (Cth), rr 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 7 August 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, Financial Wealth Advisers Pty Ltd, applied for approval of Accountant (General) ANZSCO 221111, on 26 May 2016. Mr Wai Ho Sung 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)(a)(ii) of the Regulations because the delegate was not satisfied that the application for approval had identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The applicant, represented by Mr Tai Nguyen, the Director, appeared before the Tribunal on 16 July 2018 in a joint hearing with MRT file ref 1723526 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Wai Ho Sung, 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.
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 a small financial planning and accounting practice in Norwood South Australia.
The ethnic mix of clients is diverse with a substantial proportion of Asian clients.
According to the Organisation Chart, the nominee reports directly to the Director Mr Tai Nguyen. His job title states that he is employed as an Accountant and Development Manager.
There are 5 staff in total in the business plus the Director. Of the 5 staff identified, 4 are temporary residents and 1 is listed as a permanent resident.
Mr Sung has a Certificate 4 in Business and a Bachelor of Commerce and Accounting Degree. His IELTS Overall score was 6.5.
Mr Sung performs the following tasks:
- To communicate with clients from cross cultural backgrounds and prepare marketing and business plans for these clients;
- To prepare the statutory and special purpose financial reports for clients from diverse cultural backgrounds;
- To prepare Profit and Loss and Annual Financial Reports;
- To prepare and communicate financial reports to clients in English, Mandarin and
Cantonese, including business and profit reports;
Accounts Receivable, Petty Cash, Bank Reconciliation and Payroll using professional accounting software;
- Managing and processing all of the accounting functions including Accounts Payable,
- Preparing and delivering monthly, quarterly and annual BAS (Business Activity Statement) for clients from diverse backgrounds, generating GST reports and PAYG instalments for ATO;
- Reporting and reconciling Superannuation and Workcover Returns for various institutions;
- Preparing and updating the general ledger for clients and also maintaining the Fixed Asset Registers;
- Liaising and communicating effectively with other business functions and clients from various backgrounds;
- Developing links with business clients operating businesses in Hong Kong and mainland China;
- Enhancing the client base of the practice exporting from Australia to Hong Kong and Mainland China;
- Reviewing and developing practice standards in respect to accounting to improve the accountability and efficiency of the office.
- Preparation of Income Tax Returns for individuals, partnerships, trusts and companies;
- Preparing Director's minutes in accordance with client company constitutions and share transfer forms in accordance with the Corporations Act and State legislation requirements;
- Dealing with the Australian Taxation Office with respect to compliances issues;
- Preparation of company and Trust formation and Partnership agreements, monitor ASIC compliance on a regular basis;
- Assist clients to apply for departing Australia Superannuation payments and/or payment of unclaimed superannuation money and final Tax Return lodgement.
The Tribunal questioned Mr Nguyen in detail about the need for Mr Sung’s position and why it could not be filled by an Australian citizen. The challenges associated with hiring and subsequently retaining a Accountant with Mr Sung’s skills and Chinese language ability into their organisation and this industry, which competes with a number of associated fields, were clearly articulated. Evidence was provided to the Tribunal of the salary determination, recruitment processes, and associated advertising in 2016, 2017 and 2018. It is also observed that whilst it is possible to have an accountant in this role unable to speak Cantonese and Mandarin, Mr Sung’s multi-lingual skills are an advantage in relation to business development and client interface.
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 30 applications were received in response to the initial recruitment process in 2016 with only 3 applicants deemed suitable for interview. The second round of recruitment completed in January 2017, following 30 days of advertising on Seek, resulted in 119 applicants with 5 interviewed. The third round of recruitment which included 30 days of advertising on Seek, resulted in 129 applicants 6 applicants interviewed. The Tribunal notes that these claims were substantiated with evidence provided to the Tribunal both prior to the hearing and at the hearing. The Tribunal also notes that an unsatisfactory RCB Certificate has been issued by the relevant SA based certifying body, the certificate is dated 13 September 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 Accountant under direct control of the applicant. The Tribunal notes that the delegate was not satisfied that this requirement was met at the time of application and requested additional information and invited the nominating entity to comment on the information before the department. This invitation was provided on 5 July 2017 and no response was provided prior to the decision on 7 August 2017. In particular no employment contract had been supplied which is required under r5.19(4)(a)(ii) and an unsatisfactory RCB Certificate had been provided.
The Tribunal has formed a different view based upon the additional material supplied to it prior to the hearing and during the hearing. This information included an Employment Agreement, which was aligned with more appropriate remuneration than was originally supplied to the RCB, a statement supporting the need for the position and a more detailed recruitment history. 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 some of the applicant’s recent Taxation Activity Statements, 2017 Taxation Return, ASIC Registration and the Tribunal checked the status of the listed ABN. 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)(a)(ii) of the Regulations because the delegate was not satisfied that the applicant had identified a need for the nominator to employ a paid employee in the position under the nominator’s direct control. The Tribunal was supplied with more recent financial evidence in the form of the 2017 Taxation Return, and 2017 Profit and Loss statements and 2017 BAS Statements, than was available to the delegate at the time of the decision. The Tribunal observes that the verifiable growth of revenues between 2016 and 2017 had been a substantial 70%.
The Tribunal questioned the visa applicant in depth to test his knowledge of the business skills required to engage in the activities claimed by the nominating entity. The answers showed a clear and detailed knowledge in regards to the day-to-day business activities, the industry and his primary responsibilities. 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 signed Letters of Engagement dated 16 February 2017 and 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 annual salary at $65,000 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. The Tribunal notes that advice provided to the RCB indicated a salary of $45,000 per annum, which was below market rate for the nominated position of Accountant. Their research demonstrated that a range between $47,000 and $65,000 was appropriate and therefore the RCB was unable to conclude that the terms and conditions of employment are no less favourable than would be available in the market place.
Now that the salary has been placed at the upper end of the salary range and the job description aligns with that of an Accountant (General), 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. The Tribunal notes that the bank statements provided to the Tribunal prior to the hearing, which show the visa applicant’s salary being deposited by the nominating entity, align with the Salary stated in the employment contract. 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 the information before it. The visa applicant was able to demonstrate to the Tribunal that he regularly undertakes the tasks of the nominated position and 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 an 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 13 September 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. The Tribunal notes that the concerns expressed by the RCB in regards to salary and duties being undertaken in the role have been addressed by the nominating entity, subsequent to the RCB advice. The Tribunal was in addition provide with evidence to demonstrate that a new RCB had been applied for.
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 3327

16 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction