Financier Software Pty Ltd (Migration)
[2022] AATA 3011
•28 July 2022
Financier Software Pty Ltd (Migration) [2022] AATA 3011 (28 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Financier Software Pty Ltd
CASE NUMBER: 1910135
HOME AFFAIRS REFERENCE(S): BCC2019/1239752
MEMBER:Alan McMurran
DATE:28 July 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 28 July 2022 at 3:39pm
CATCHWORDS
MIGRATION – nomination – Medium-term stream– Accountant (General) – nominee does not perform a majority of the tasks as described in ANZSCO for the nominated occupation of Accountant (General) – position associated with the nominated occupation is not ‘genuine’ –– decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 140GBA, 359
Migration Regulations 1994, rr 2.72, 2.73, 5.19CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application lodged 23 April 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 23 April 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 12 March 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: The Short-term stream, the Medium-term stream, or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA.
In this case, the nominated occupation is for a Subclass 482 visa in the Medium-term stream. The nominee is a 28-year-old Malaysian citizen, Xin Xiang Ong, currently offshore on a Subclass 601 Electronic Travel Authority visa (“the nominee”). The nominee has been nominated by the applicant, Financier Software Pty Ltd t/as Castaway Forecasting, for the occupation of Accountant (General) ANZSCO 221111.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy subregulation 2.72(11) because the applicant was requested to provide a copy of the written contract of employment signed by both parties but failed to do so before the Department completed its decision.
The applicant appeared before the Tribunal on 26 July 2022 to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s CEO, Mr Michael Ford. The applicant’s COO, Ms Jo Buchanan was also present for the hearing. The applicant was unrepresented. The hearing was conducted by video in accordance with the Tribunal’s current Practice Direction for providing a mechanism of review that is fair, just, economical, informal, and quick. No concern was raised as to the format for the hearing or the matter proceeding remotely. The applicant’s representatives were duly authorised to appear, and the CEO indicated that they were ready to proceed and did not require an adjournment or time to produce further documentation or information.
The hearing was conducted as a combined hearing with Tribunal case number 1912885, involving the same applicant and nominee for the same nominated occupation. The applicant consented to the cases being heard together. The Tribunal relies on the findings in case number 1912885 which are not repeated herein, but which are relevant to these proceedings, as the provisions for the nomination in the Act and Regulations for the sponsored occupation are the same in both applications.
This decision should be read in conjunction with the decision in case number 1912885.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
If any requirement is not met, the Tribunal does not have to consider any other remaining requirements. A copy of the relevant regulations is annexed to this decision.
The Tribunal has had regard to the information available including the Department file with the application, and the Tribunal file and submissions, the Act, relevant Regulations, and Department Policy (PAM 3), and the evidence available from the witnesses at the hearing. The applicant provided a large bundle of documents and information both to the Department, and subsequently to the Tribunal, which have been considered. The individual documents submitted are not listed unless relevant and referred to for the purposes of this decision.
The applicant has provided the Tribunal with a copy of the Department’s decision for review and responses to an invitation sent on 28 March 2022 to provide updated information to the Tribunal under s.359(2) of the Act. Multiple submissions were received on 11 April 2022.
The applicant included with the submissions a copy of the nominee’s contract, styled as an “Offer of Employment”, signed by the applicant and the nominee on 5 November 2017, and which states the position offered is that of “Software Support & Junior Consultant”. This was the document the delegate had found had not been submitted with the application. The contract was not otherwise updated as at the time of decision.
Background
The company was registered on 2 November 2009 and is actively trading from an address in Sydney. The company has approximately 8 employees at the time of decision, including the nominee who is working as a contractor from Malaysia. The 2019 organisation chart has changed, and 4 employees have now left the business. It is currently recruiting other staff and anticipates having a staff roll of approximately 20 within the next 6 months. According to ASIC, the company has two current directors and is wholly owned by two separate corporate entities.
The applicant is a standard business sponsor (SBS) approved by the Department for a 5-year period from 21 February 2019 to 21 February 2024. The applicant seeks to continue to sponsor the nominee for the nominated occupation. The applicant has not sought any assistance with lodgement of its applications and does not purport to be experienced or expert in the migration space.
The applicant conducts a business which describes its software product, Castaway, as “ a comprehensive and intelligent business modelling and cashflow forecasting tool” [1]. The applicant describes itself as building software “that helps businesses grow”. The applicant owns the software which it has developed, and since 2010 now exports the product around the globe. The applicant supplies the software to 80% of the top accounting firms as a tool for forecast modelling, which it describes as a specialist skill, and which skill is not part of the general accountant’s usual skillset. Approximately half its customers are SME’s and end-user entities.
Two applications for review
[1] Applicant’s website: >
The applicant brought this application in respect of the nominee on 12 March 2019. The applicant brought a subsequent application[2] on 26 April 2019 which was refused by the Department on 10 May 2019, for a different reason, and which decision is also the subject of an application for merits review in the Tribunal.[3] That application for review was also heard by the Tribunal on 26 July 2022 in conjunction with these proceedings.
[2] BCC20192278453
[3] T case number 1912885
Both review applications are validly lodged, and each case has the same rights to merits review, at law comprising two separate applications. To the extent, however, the information and evidence in one proceeding also arises in the other proceeding (1912885), the Tribunal may refer to the same information and rely upon it. The Tribunal explained to the applicant that each review would be considered on its merits. The applicant did not object to the process or require separate hearings in respect of each matter.
Where it is not necessary to do so, the Tribunal does not repeat the facts and reasons in each decision record, separately made.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made (12 March 2019), that is, LIN 19/048 in force from 11 March 2019. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal repeats the reasoning set out at paragraph 19 of the decision in case number 1912885.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal repeats the reasoning and findings set out at paragraphs 21 – 43 of the decision in case number 1912885, which relies upon the same information and submissions made by the applicant in both applications, and for the same nominated occupation.
The Tribunal finds for these reasons that the requirements of reg 2.72(10)(a) are not met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI18/035. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.
This was the provision which troubled the Department as the applicant had not provided a copy of the contract of employment signed by the employer and the nominee as required by the regulation.[4]
[4] reg 2.72(11)(e)
On 11 April 2022, the applicant provided the Tribunal with a signed copy of an employment agreement as referred to above[5] signed on behalf of the applicant and the nominee and dated 5 November 2017.
[5] Paragraph 14 herein
As explained to the applicants at hearing, wherever any one requirement is not met where mandated in the Regulations, the Tribunal does not have to consider the other remaining requirements and does not have any discretion to waive that compliance for the mandated requirements in reg 2.72.
As the requirement in reg 2.72(10)(a) above has not been met, the Tribunal has not considered the remaining requirements.
Conclusion
Where any requirement under the Act or Regulations has not been met, the Tribunal is not required to consider the remaining criteria for the nomination to be approved. Nor does the Tribunal have any discretion to disregard the legislative requirements for reasons not specified in the Act or Regulations.
For the reasons given above, and as one of the requirements in the regulations has not been met, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved.
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Alan McMurran
MemberATTACHMENT - Extracts from the Migration Regulations 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) …
(iv) …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii) …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i) a short term skilled occupation; or
(ii) a medium and long term strategic skills occupation; and
(b)either:
(i) the 6-digit ANZSCO code for the occupation; or
(ii) if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i) the person who nominated the occupation;
(ii) the nominee;
(iii) the occupation;
(iv) the position in which the nominee is to work;
(v) the circumstances in which the occupation is undertaken;
(vi) the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii) it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii) it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii) it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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