Florence Patrick Consulting Pty Ltd (Migration)

Florence Patrick Consulting Pty Ltd (Migration) [2021] AATA 407 (17 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Florence Patrick Consulting Pty Ltd
CASE NUMBER:  1908434
DIBP REFERENCE(S):  BCC2018/1147031
MEMBER:Amanda Ducrou
DATE:17 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 17 February 2021 at 12:12pm
CATCHWORDS
MIGRATION – Employer Nomination – sponsorship approval – Direct Entry Nomination – Taxation Accountant – active and lawful operation – active maintenance or management of business website – adverse information – Taxation Practitioners Board (TPB) registration – failure to comply with taxation laws – genuine need – specialisation in SMSF work – cultural and linguistic background of the clientele – advice from the Regional Certifying Body – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Re Drake No. 2 (1978-1980) 2 ALD 634
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
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 March 2019 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 10 March 2018. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 position identified in the nomination application is Taxation Accountant (ANZSCO 221113) which is identified in the nomination application. The application for approval identifies Ms Thi Thanh Tram Nguyen as the nominee.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(F) of the Regulations because the information available to the delegate did not include advice from a Regional Certifying Body, as specified in the instrument relevant to r.5.19(4)(h)(ii)(F) advising the Minister about the matters mentioned in paragraph (e) of r.5.19(4) or sub-paragraphs (B) and (C) of r.5.19(4)(h)(ii) of the Regulations. The delegate, therefore, determined that the applicant had not demonstrated that it met the requirements in r.5.19(4)(h) of the Regulations.
On 6 January 2020 the Tribunal wrote to the applicant. The letter stated that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. The letter invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review on 30 January 2020 at 10:30am (Victorian time). The letter was sent to the applicant by email via the applicant’s representative at the email address provided in connection with the application for review. On 13 January 2020 the Tribunal received the applicant’s response to the hearing invitation. The response stated that the applicant would take part in the hearing as scheduled and that Mr Daniel Bellissimo of Wickham Lawyers Pty Ltd would represent the applicant at the hearing. According to records maintained by the Tribunal, the applicant had appointed Mr Vikas Jain of Wickham Lawyers Pty Ltd as its representative in relation to the review. A Tribunal officer telephoned Wickham Lawyers Pty Ltd on 14 January 2020. The Tribunal officer spoke to Mr Bellissimo who confirmed that while he would be appearing at the hearing to represent the applicant as Mr Jain was not able to attend the hearing, Mr Jain was, and would remain the applicant’s representative in relation to the review.
On 24 January 2020 the Tribunal received documents from the applicant including written submissions dated 24 January 2020 from the applicant’s representative. The Tribunal received additional documents from the applicant on 29 January 2020. Mr Patrick Lawrence Yip, the applicant’s director, appeared before the Tribunal on 30 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Thanh Tram Nguyen. Mr Yip and Ms Nguyen gave evidence separately at the hearing. The applicant’s representative, Mr Bellissimo was present at the hearing. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. At the hearing the Tribunal received a document, being a form 1404 issued on 25 November 2019 by Geelong Regional Certifying Body, City of Greater Geelong. The Tribunal invited the applicant to provide further information and/or documents following the hearing including further written submissions. The Tribunal invited the applicant to provide the further information and/or documents by 28 February 2020.
On 7 February 2020 the Tribunal wrote to the applicant. The letter was set out in two parts. The first part of the letter invited the applicant, pursuant to s.359A of the Migration Act 1958 (the Act), to comment on or respond to information which it considers would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. The letter included particulars of the information, namely, that the Tribunal was provided with information that the applicant has made salary payments to Ms Nguyen in cash since February 2019. The Tribunal’s letter explained that the information is relevant to the review as if the Tribunal were to accept that the information is true, it undermines the oral evidence that Mr Yip gave at the hearing on 30 January 2020 that the applicant pays salaries to bank accounts held by employees and the Tribunal may not accept the oral evidence given by Mr Yip as reliable. The letter explained that if the Tribunal were to find that the oral evidence given by Mr Yip is not reliable then the Tribunal may find that Ms Nguyen has not and will not be employed by the applicant as a paid employee, and it is a requirement for the approval of the nomination under r.5.19(4)(a), r.5.19(4)(d), r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) of the Regulations that Ms Nguyen (being identified as the nominated person in the nomination application made by the applicant on 10 March 2018) will be employed by the applicant. The letter went on to explain that the consequences of the Tribunal relying on this information is that the Tribunal may find that the applicant is unable to meet r.5.19(4)(a), r.5.19(4)(d), r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) of the Regulations on the basis that Ms Nguyen will not be employed by the applicant and that if the Tribunal were to rely on this information, it would be the reason, or a part of the reason for the Tribunal affirming the decision under review.
The letter asked the applicant to provide comments or a response by 21 February 2020. The letter noted that the applicant could request an extension of time provided that any such request was received by 21 February 2020. The letter explained that if the comments on or response to the information was not received within the period allowed, or as extended, the Tribunal may make a decision on the review without taking further action to obtain the applicant’s views on the information and that the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The second part of the Tribunal’s letter of 7 February 2020 confirmed that the Tribunal had invited the applicant to provide further information and/or documents by 28 February 2020. The letter listed the information and/or documents that the applicant was invited to provide. The letter noted that the applicant could request an extension of time, but any such request must be received before 28 February 2020. The letter explained that if the requested information was not received within the period allowed or as extended, then the Tribunal would proceed to make its decision on the review without taking further action to obtain the information. The letter was sent to the applicant by email via the applicant’s representative (Mr Jain) at the email address provided in connection with the application for review. The Tribunal is satisfied that the letter invitation was properly sent to the correct email address.
On 26 February 2020 the Tribunal received an email from Mr Bellissimo advising that the applicant requested an extension of time of 21 days to provide the information and/or documents. No reason was provided for the request. On 28 February 2020 the Tribunal wrote to the applicant and advised that an extension of time to provide the information was granted until 20 March 2020. The letter noted that the applicant could request an extension of time, but any such request must be received before 20 March 2020. The letter explained that if the requested information was not received within the period allowed or as extended, then the Tribunal would proceed to make its decision on the review without taking further action to obtain the information. The Tribunal’s letter was sent to the applicant by email via the applicant’s representative (M Jain) at the email address provided in connection with the application for review.
On 13 March 2020 the Tribunal received a request from Mr Bellissimo advising that the applicant requested an extension of time of 28 days to provide the information and/or documents. No reason was provided for the request. On 17 March 2020 the Tribunal wrote to the applicant and advised that an extension of time to provide the information was granted until 17 April 2020. The letter noted that the applicant could request an extension of time, but any such request must be received before 17 April 2020 and must state the reason why the extension of time is required. The letter explained that if the requested information was not received within the period allowed or as extended, then the Tribunal would proceed to make its decision on the review without taking further action to obtain the information. The Tribunal’s letter was sent to the applicant by email via the applicant’s representative (Mr Jain) at the email address provided in connection with the application for review.
On 7 April 2020 the Tribunal received an email from Mr Bellissimo. The Tribunal also received documents attached to the email. The documents were some, but not all, of the information and/or documents that the applicant had been invited to provide. The email advised that the applicant had advised that it was in the process of providing the other information and requested an extension of time of 28 days to provide the remaining information. On 20 April 2020 the Tribunal wrote to the applicant and advised that an extension of time to provide the information was granted until 5 May 2020. The letter noted that the applicant could request an extension of time, but any such request must be received before 5 May 2020 and must state the reason why the extension of time is required. The letter explained that if the requested information was not received within the period allowed or as extended, then the Tribunal would proceed to make its decision on the review without taking further action to obtain the information. The Tribunal’s letter was sent to the applicant by email via the applicant’s representative (Mr Jain) at the email address provided in connection with the application for review.
On 4 May 2020 the Tribunal received an email from Mr Yip requesting an extension of time to 25 May 2020 or 31 May 2020 to provide the information. In the email Mr Yip explained that he was very busy due to the COVID-19 pandemic situation because he needed to keep up to date with changes to government regulations regarding taxation law that may apply to different small businesses. Mr Yip provided examples of types of situations where he needed to give clients such advice. In his email Mr Yip estimated the length of time that he would need to provide the information. On 5 May 2020 the Tribunal wrote to the applicant and advised that an extension of time to provide the information was granted until 5:00pm on 25 May 2020. The letter noted that the applicant could request an extension of time, but any such request must be received before 5:00pm on 25 May 2020 and must state the reason why the extension of time is required. The letter explained that if the requested information was not received within the period allowed or as extended, then the Tribunal would proceed to make its decision on the review without taking further action to obtain the information. The Tribunal’s letter was sent to the applicant by email via the applicant’s representative (Mr Jain) at the email address provided in connection with the application for review. The Tribunal received information and documents from the applicant on 25 May 2020 and further information and documents on 26 May 2020. The documents that the Tribunal received on 26 May 2020 included written submissions from Mr Jain dated 26 May 2020.
On 15 December 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on or respond to information which it considers would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. The letter included particulars of the information (which are set out later in these reasons). The letter asked the applicant to provide comments or a response by 29 December 2020. The letter noted that the applicant could request an extension of time provided that any such request was received by 29 December 2020. The letter explained that if the comments on or response to the information was not received within the period allowed, or as extended, the Tribunal may make a decision on the review without taking further action to obtain the applicant’s views on the information and that the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The letter was sent by email to the applicant via its representative at the email address provided in connection with the review. The Tribunal is satisfied that the invitation to give comments on or respond to the particulars of the information was properly sent to the correct email address.
On 29 December 2020 the Tribunal received an email from Mr Yip requesting an extension of time to 18 January 2021 to provide comments or a response on the basis that due to the Christmas and New Year holidays, offices such as the Australian Taxation Office (ATO) or migration agents are still on holidays and that the applicant believed that everyone should be returning to work around 18 January 2021.
On 4 January 2021 the Tribunal wrote to the applicant and advised that an extension of time to provide comments on or respond to the information particularised in the Tribunal’s letter dated 15 December 2020 was granted until18 January 2021. The letter explained that if the comments or response were not received by 18 January 2021, the Tribunal may make a decision on the review without taking further action to obtain the applicant’s views on the information and that the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The letter was sent by email to the applicant via its representative (Mr Jain) at the email address provided in connection with the review. The Tribunal is satisfied that the invitation to give comments or respond was properly sent to the correct email address. On 18 January 2021 the Tribunal received information and documents from the applicant in response to the Tribunal’s letter of 15 December 2020 and to the information particularised in that letter. The documents that the Tribunal received included written submissions from Mr Yip dated 18 January 2021.
For the following reasons, the Tribunal has decided to affirm the decision under review.
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.
A copy of the delegate’s decision accompanied the application for review that the applicant lodged with the Tribunal. At the hearing Mr Yip confirmed that the applicant received a copy of the delegate’s decision and that he had read and understood the reasons for the decision.
At the hearing the Tribunal put information to Mr Yip, as director of the applicant, pursuant to s.359AA of the Act, being that on the day prior to the hearing the Tribunal undertook a Google search of the applicant’s website which returned the result: “florencepatrickconsulting.com.au’s server IP address could not be found”. The Tribunal gave Mr Yip a copy of the search result at the hearing. The Tribunal advised that it had not made up its mind about this information. The Tribunal told Mr Yip that it was inviting him to comment on or respond to the information but that he did not have to comment on or respond to the information immediately and that he may seek additional time to comment or respond. The Tribunal explained that it considered that this information is relevant to the review and potentially adverse to the applicant’s case as, if the Tribunal were to accept the information as true and rely on the information, it may suggest that the applicant is not actively managing or maintaining a website for its business. The Tribunal noted that the website is shown on the applicant’s letterhead and its documents.
The Tribunal explained that if it were to find that the applicant is not actively maintaining or managing a website for its business then the Tribunal may find that the applicant is not actively operating a business in Australia. As it is a requirement for the approval of the application of the nomination of a position in Australia under r.5.19(4)(b)(i) of the Regulations that the applicant (as the nominator) is actively and lawfully operating a business in Australia, if the Tribunal were to find that the requirements in r.5.19(4)(b)(i) of the Regulations are not satisfied then as a consequence this would mean that the applicant does not satisfy a requirement for the approval of the application that the applicant made for the nomination of a position in Australia as all of the requirements in r.5.19(4) of the Regulations must be met in order for the application to be approved. This would mean that all of the requirements for the application for approval of the nomination of a position in Australia are not satisfied and this would be the reason, or a part of the reason, for affirming the decision under review to refuse to grant the application the applicant made for approval of the nomination of a position in Australia under r.5.19 of the Regulations.
Mr Yip asked the Tribunal to allow him time to comment on or respond to the information and the Tribunal adjourned the hearing. The hearing resumed on 30 January 2020 after the adjournment and Mr Yip confirmed that he wished to respond to the information at the resumption of the hearing. Mr Yip told the Tribunal that the reason why the Tribunal could not access the website is because the applicant was in the process of getting a new website. Mr Yip told the Tribunal that he would be able to provide documents confirming this after the hearing. The Tribunal invited Mr Yip to provide the documents and/or the information after the hearing. The documents that the Tribunal received on 26 May 2020 included email correspondence between Mr Yip and consultants from Wix.com that took place prior to the hearing and is consistent with Mr Yip’s oral evidence. The Tribunal accepts Mr Yip’s explanation of why the Tribunal could not access the applicant’s website and placed no weight on the search results in making its decision.

The documents that the Tribunal received on 26 May 2020 in response it its letter of 7 February 2020 included bank transaction statements from the nominee’s personal bank account, copies of payslips for the nominee issued by the applicant, copies of the nominee’s PAYG summary statements for the 2017/2018 and 2018/2019 financial years, copies of bank transaction statements for the personal joint account the nominee holds with her partner and copies of documents identifying payments sent by the nominee to her family in Vietnam from her salary. The Tribunal notes that the information to which the Tribunal invited the applicant to comment or respond to pursuant to s.359A of the Act in its letter of 7 February 2020 came to the Tribunal’s attention in the oral evidence that Ms Nguyen gave at the hearing and is not consistent with the oral evidence Mr Yip gave that the applicant pays its employees their remuneration to their bank accounts. In the written submissions dated 26 May 2020, the applicant’s representative submitted that the documentation evidenced that the salary was paid to the nominee. While the Tribunal considers that the payment of a salary to an employee in cash is unusual, this does not mean that such an arrangement is not legitimate. The Tribunal saw no reason to doubt that the nominee’s employment by the applicant is legitimate on the basis that the nominee receives her salary in cash having regard to available oral and documentary evidence.
The letter that the Tribunal wrote to the applicant on 15 December 2020 invited the applicant, pursuant to s.359A of the Act, to give comments on or respond to information particularised in the letter. The Tribunal obtained the information when it conducted a search of the Tax Practitioners Board (TPB) Register. The letter states (in relevant part):
Background
·     On 10 March 2018, Florence Patrick Consulting Pty Ltd lodged a nomination application under the Direct Entry stream, nominating Thi Thanh Tram Nguyen in the nominated position of Taxation Accountant (ANZSCO 221113) (the nomination).
·     On 18 March 2019, a delegate of the Minister for Immigration refused the nomination, and on 6 April 2019 Florence Patrick Consulting Pty Ltd sought a review of that decision.
Particulars of information
·     On 14 December 2020 the Tribunal searched the Tax Practitioners Board Register (the search result is attached). The Register records the following information:
·     Registration of Florence Patrick Consulting Pty Ltd as a company tax agent expired on 1 October 2019;
·     Registration of Florence Patrick Consulting Pty Ltd as a company tax agent was terminated with effect from 24 March 2020. Reason: 30 – 30 Failure to comply with Code of Professional Conduct. Details: Code breach(es): 30 – 10 (02) Code – failed to comply with taxation laws in conduct of personal affairs;
·     Registration of Mr Patrick Lawrence Yip as an individual tax agent was terminated with effect from 1 December 2020. Reason: 40-5 (1)(b) individual no longer meets registration requirements. Details: Code breach(es): 30- 10(02) Code – failed to comply with taxation laws in conduct of personal affairs. Registration Requirement not met: 20-5(1)(a) Individual has ceased to meet registration requirement that they are a fit and proper person. Explanation: on 1 October 2020 after completing an investigation, the Tax Practitioners Board (TPB) decided to terminate the tax agent registration of Mr Patrick Lawrence Yip after finding he had engaged in conduct that involved breaches of the Code of Professional Conduct (Code) under the Tax Agent Services Act 2009 and ceased to meet the tax practitioner registration requirement, that he is a fit and proper person. The TPB also imposed a period of 12 months during which Mr Yip may not apply for registration. The TPB found Mr Yip had breached the Code because he failed to comply with taxation laws in the conduct of his personal affairs as an individual, and in his capacity as sole director of a company, by failing to pay significant outstanding taxation liabilities to the Commissioner of Taxation as and when they fell due. In making its findings regarding Mr Yip’s fitness and propriety, the TPB considered that Mr Yip had breached the Code and demonstrated a pattern of non-compliance with taxation laws in his individual capacity and as sole director of a company.
·     Mr Patrick Lawrence Yip is disqualified from registration as an individual tax agent, with effect for the period from 1 December 2020 to 1 December 2021. Reason: 40-25 Period during which you may not apply for registration. Details: 30-10(02) Code – failed to comply with taxation laws in conduct of personal affairs. Registration Requirement not met: 20-5(1)(a) Individual has ceased to meet registration requirement that they are a fit and proper person.
·     On 10 December 2020 the Tribunal searched the SMSF register on the ASIC (Australian Securities and Investments Commission) website: px?_adf.ctrl-state=owtlod0dh_40
·     No results were returned for the name Patrick Lawrence Yip.
In summary, the Tribunal’s letter explained that this information is relevant to the review because if the Tribunal were to accept that the information is true and the Tribunal were to rely on the information, then the Tribunal may find that the applicant does not meet all of the requirements in r.5.19(4) of the Regulations and that all of the requirements of r.5.19(4) of the Regulations must be satisfied in order for the nomination application that the applicant made to be approved and that this would be the reason, or a part of the reason, for the Tribunal affirming the decision under review. The Tribunal’s letter went on to explain the relevance of the information to the review in more detail (in relevant part):
Under the Tax Agent Services Act 2009 and the Tax Agent Services Regulations 2009 anyone who provides tax agent services for a fee or other reward must be registered with the Taxation Practitioners Board.
Under the Superannuation Industry (Supervision) Act 1993 to conduct SMSF (self- managed super fund) audits a person must, amongst other requirements, be registered with ASIC as an approved SMSF auditor.
In order for the application that Florence Patrick Consulting Pty Ltd made on 10 March 2018 for approval of the nomination of a position in Australia under r. 5.19 of the Migration Regulations 1994 (the Migration Regulations) to be approved all of the applicable legislative requirements must be satisfied. The application for approval of the nomination that Florence Patrick Consulting Pty Ltd made on 10 March 2018 was made on the basis that the criteria for the approval of the application in the Direct Entry nomination stream are satisfied. Those criteria are set out in r. 5.19(4). All of the requirements of r. 5.19(4) must be satisfied in order for the nomination application to be approved.
For r.5.19(4)(b) to be satisfied, the nominator must actively and lawfully operate a business in Australia and directly operate the business. The Tribunal must be satisfied that these requirements are met at the time of its decision.
If the Tribunal were to accept that: Florence Patrick Consulting Pty Ltd is not registered with the Taxation Practitioners Board as a registered tax agent and/or Mr Patrick Lawrence Yip, being the sole director of Florence Patrick Consulting Pty is not registered with the TPB as a registered tax agent and/or Mr Patrick Lawrence Yip is not registered with ASIC as an approved SMSF auditor then the Tribunal may find that the nominator (in this case, being Florence Patrick Consulting Pty Ltd) is not actively and lawfully operating a business in Australia that provides tax agent services for a fee and/or conducts SMSF audits and that Florence Patrick Consulting Pty Ltd is not directly operating a business that provides these services as required under r.5.19(4)(b) of the Migration Regulations.
For r. 5.19(4)(a)(ii) to be satisfied the application made by Florence Patrick Consulting Pty Ltd for approval must identify a need for the nominator to employ an identified person, (in this case, Thi Thanh Tram Nguyen) as a paid employee, to work in the position (in this case, being the position of Taxation Accountant (ANZSCO 221113)) under the nominator’s direct control. For r. 5.19(4)(h)(ii)(B) to be satisfied, there must be a genuine need for the nominator to employ the person identified under subparagraph r. 5.19(4)(a)(ii) as a paid employee, to work in the position of Taxation Accountant (ANZSCO 221113) under the nominator’s direct control. The Tribunal must be satisfied that these requirements are met at the time of its decision.
If the Tribunal were to accept that: Florence Patrick Consulting Pty Ltd is not registered with the Taxation Practitioners Board as a registered tax agent and/or Mr Patrick Lawrence Yip, being the sole director of Florence Patrick Consulting Pty is not registered with the TPB as a registered tax agent and/or that Mr Patrick Lawrence Yip is not registered with ASIC as an approved SMSF auditor then the Tribunal may find that there is no need and/or no genuine need for Florence Patrick Consulting Pty Ltd to employ Thi Thanh Tram Nguyen as a paid employee, to work in the position of Taxation Accountant (ANZSCO 221113) under the direct control of Florence Patrick Pty Ltd as required under r. 5.19(4)(a)(ii) and r. 5.19(4)(h)(ii)(B) of the Migration Regulations.
For r. 5.19(4)(f) to be satisfied either there must be no adverse information known to Immigration about the nominator or a person associated with the nominator or that it is reasonable to disregard any adverse immigration known to Immigration about the nominator or a person associated with the nominator. The Tribunal must be satisfied that these requirements are met at the time of its decision. Adverse information means any adverse information relevant to a sponsor’s suitability as an approved sponsor or a nominator (within the meaning of regulation 5.19) and includes information about the sponsor or a person associated with the sponsor (The meaning of ‘adverse information’ and ‘associated with’ is set out in r. 1.13A and r. 1.13B of the Migration Regulations, attached).
If the Tribunal were to accept that the registration of Florence Patrick Consulting Pty Ltd as a Company Tax Agent and/or the registration of Mr Patrick Lawrence Yip as an Individual Tax Agent were terminated for the reasons recorded on the Tax Practitioners Board Register and that it is true that the registration requirements were not met due to failure to comply with taxation laws in the conduct of personal affairs and that Mr Yip has been found by the Tax Practitioners Board not to be a fit and proper person on the basis that he breached the Code of Professional Conduct under the Tax Agent Services Act 2009 and demonstrated a pattern of non-compliance with taxation laws in his individual capacity and as sole director of a company then the Tribunal may find that there is adverse information known to Immigration about the nominator or a person associated with the nominator or it is not reasonable to disregard any adverse immigration known to Immigration about the nominator or a person associated with the nominator. If the Tribunal were to make these findings, then the Tribunal may find that the requirements in r. 5.19(4)(f) are not met.
In his written submissions dated 18 January 2021 Mr Yip made the following points:
·     His registration as an individual tax agent with the TPB was temporarily suspended with effect from 1 December 2020 to 30 November 2021 due to his personal tax affairs.
·     The matters concerned his integrated client account and superannuation guarantee account after his divorce. Payment arrangements have been entered into for these accounts and, therefore, the matters have been rectified.
·     The case officer at the TPB said that this was just a small breach with a 12-month suspension, rather than a three-year suspension which would have applied if it was a major breach.
·     During the period of the suspension and to comply with the codes and the TPB, a staff member, named Nick (Mr Minh Nhut Vo), is assisting him to oversee all tax returns before they are submitted to the ATO (Mr Vo’s registration details on the TPB register were attached).
·     The applicant’s registration as a company tax agent is expired. He is the director of the applicant and is currently reviewing the applicant’s financial accounts to ensure that it is ready to reapply for company tax agent registration after 1 December 2021. There are about 11 months and 13 days to go before that date. During this period and to comply with the codes and the TPB, Mr Vo is assisting Mr Yip to oversee all tax returns before submission to the ATO.
·     The arrangements that have been adopted by the applicant to use the individual tax agent TPB registration of its staff, namely Mr Vo, are similar to the arrangements Mr Yip’s previous employer adopted.
·     Mr Yip wants the applicant to be a long-term business and a successful business.
·     Mr Yip, in the past, has been registered as a Self-Managed Superannuation Fund (SMSF) auditor with ASIC but his registration has expired. He is studying towards the specialty course for registration as a SMSF auditor. However, he could outsource the SMSF sign off to an outside auditor to sign off.
·     The applicant is currently using external auditors for its SMSF work. This meets ATO requirements and the ATO would like more independent external auditors to sign off. In fact, the applicant started this way.
·     Mr Yip wants the applicant to use its energy to be more competitive in the Australian market and for the staff to continue their workflow with systems in place in order to have better turnaround in processing clients’ work. For example, a previous employer of Mr Yip at some points also outsourced its SMSF work to external auditors.
The documents that the Tribunal received on 18 January 2021 are:
·     The written submissions from Mr Yip and the extract from the TPB register for Mr Vo, referred to in the submissions.
·     Pro forma letter of engagement issued by SuperPlus Audit Pty Ltd (signed by Arun Palmer on behalf of SuperPlus Audit Pty Ltd, for the engagement of SuperPlus Audit Pty Ltd as the auditor of the nominated superannuation fund and for the provision by SuperPlus Audit Pty Ltd of an independent auditor’s report. The letter sets out the terms and conditions of the engagement.
·     Email sent by Mr Yip to the applicant on 18 January 2021 forwarding an email sent by Mr Zack Yiv, Director, SuperPlus Audit Pty Ltd, which states (in relevant part):
… It was a pleasure meeting you in person and thank you for teaming up with us for your SMSF audit needs.
Please see attached template for engagement letter, trustee representation letter and investment strategy.
·     Pro forma document issued by SuperPlus Audit Pty Ltd. The document is headed “Trustee Representation Letter [Fund Name] Superannuation Fund” and, amongst other matters, sets out representations made by the trustees of a nominated superannuation fund in relation to the preparation of financial statements for the nominated superannuation fund.
·     Email dated 10 August 2020 sent by Mr Michael O’Neill, Secretary/Chief Executive Officer, TPB, to Mr Yip containing a letter of support from the TPB to tax practitioners as a result of challenges presented by the COVID-19 pandemic. Amongst other matters, the letter states that the TPB has taken temporary measures and is revising some of its policies and is providing additional support around registration renewals. The letter goes on to state that the team at the TPB will work with practitioners to resolve any outstanding TPB matters and have a range of concessions and support measures in place to assist practitioners.
·     A document referred to as “other competitor promotion – Just Superfund”. The document is a letter dated 1 July 2020 from Just Superfund SMSF Accounting Professionals (Just Superfund) addressed to “Self-Managed Superannuation Fund” at a post office box address. The letter is headed “SMSF Accounting & Audit Services”. It contains details of an offer, including the fee for providing all of the SMSF’s reporting requirements. The letter is signed by Jordan Hendrix, SMSF Accounting Professional, Just Superfund Tax Agent (and provides a Tax Agent Number).
·     Extract from the TPB Register for the applicant.
·     Pro forma document headed “Investment Strategy of … Superannuation Fund”.
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 a 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.
Under the definition in r.1.13A of the Regulations, ‘adverse information’ means any adverse information relevant to a sponsor’s suitability as an approved sponsor or a nominator and includes information about the sponsor or a person associated with the sponsor. The definition goes on to list specific types of information that are included in the definition of ‘adverse information’. The definition makes it clear that the list is not exhaustive and that other information which is in some way adverse and relevant to the sponsor’s suitability as an approved sponsor or as a nominator could be considered adverse information for the purposes of r.5.19(4)(f).
Having regard to the definition in r.1.13B of the Regulations the Tribunal is satisfied that as the director of the applicant Mr Yip is associated with the applicant within the meaning of r.5.19. Having regard to the definition in r.1.13A and based on the information recorded in the TPB Register, the Tribunal is satisfied that the termination of the registration of the applicant and Mr Yip as tax agents by the TPB for the reasons recorded, namely for failing to comply with taxation laws, is adverse information relevant to the applicant’s suitability as a nominator within the meaning of r.5.19.
The Tribunal considered whether in the circumstances of this case it would be reasonable for the Tribunal to exercise the discretion in r.5.19(4)(f)(ii) to disregard the adverse information known about the nominator or a person associated with the nominator. The policy regarding adverse information (as set out in the Procedures Advice Manual or PAM3, as applicable when this application was made) sets out a number of factors that may be considered by the decision maker (in this review the Tribunal) in deciding whether it is reasonable to disregard the adverse information. The policy makes it clear the decision-maker should take a flexible approach and must always assess the circumstances of each case on its merit. The Tribunal is mindful that while it may be guided by policy it is not bound to follow policy (see Brennan J in Re Drake No. 2 (1978-1980) 2 ALD 634). The Courts have held that the Department’s PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. There is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant (see for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429 and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]).
In his submissions dated 18 January 2021 Mr Yip states that as the director of the applicant he is currently reviewing the applicant’s financial accounts to ensure that it is ready to reapply for registration as a company tax agent when the period of termination expires. Mr Yip submitted that the breaches are small, as evidenced by the period of termination that was imposed (12 months), which would have been longer if the breaches were major, and that the breaches have been rectified by entering into payment arrangements. The Tribunal considers that these matters are consistent with the exercise of the discretion to disregard the adverse information. However, the following matters weigh against the exercise of the discretion, namely that the applicant did not disclose the adverse information voluntarily and the nature of the findings made by the TPB, being that there was a failure to comply with taxation laws, and that Mr Yip had demonstrated a pattern of non-compliance with taxation laws in his individual capacity and as sole director of a company. While the Tribunal accepts, based on the information Mr Yip provided, that the breaches leading to the deregistrations occurred in the very difficult personal situation involving a family breakdown, the Tribunal is not satisfied, having regard to the oral and documentary evidence that, in this case, it is reasonable to disregard the adverse information.

Accordingly, the requirements in r.5.19(4)(f) are not met.
Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. The requirements relevant to this case are summarised as follows:
· The position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.
Regional certification
One of the requirements that the applicant must satisfy is in r.5.19(4)(h)(ii)(F). The requirement is that a Regional Certifying Body (RCB) located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C).
The delegate found that the information submitted in support of the application for approval of the nomination of a position in Australia did not include advice from a RCB, as specified in the relevant instrument, advising the Minister that the matters mentioned in in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations are met. The delegate, therefore, determined that r.5.19(4)(h) is not met.
At the hearing the applicant provided a form 1404 issued on 25 November 2019 by Geelong Regional Certifying Body, City of Greater Geelong, based in Geelong, Victoria advising the Minister about the matters mentioned in r.5.19(4)(e) and rr.5.19(4)(h)(ii)(B) and (C) of the Regulations. The declaration at item 15 of the form 1404 records these requirements as “Not satisfied”.
The written submissions dated 24 January 2020 from the applicant’s representative address the applicant’s fulfilment of the requirements of r.5.19(4)(h)(ii)(F) of the Regulations. The submissions make the following points (in summary):
·     The applicant submitted an application to the relevant RCB on 30 August 2019.
· On 26 November the RCB determined that, in its assessment, the applicant did not satisfy the requirements in r.5.19(4)(h)(ii)(B) and (C) as the RCB determined that there was no skill shortage of Accountants or Taxation Accountants in the Geelong region and no business actively operating out of the office located at Suite 16, Level I, Little Malop Street, Geelong.
·     Despite the decision of the RCB, the applicant meets the requirements and the nomination should be approved.
·     As described in the policy at section 10.7.1 of PAM3: Div5.3/r.5.19, as applicable to approval of nominator positions, the Department regulations do not stipulate that the advice provided by the RCB must be considered by the delegate. Similarly, PAM (at section 10.7.2.1) states that the delegate must independently assess the nomination against all the criteria that have been issued by the RCB in providing their advice.
·     Despite the assessment made by the RCB, there is a genuine need for the applicant as the nominator to employ the nominee as a paid employee to work in the position under the applicant’s direct control and 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.
At the time when the application for approval of the nomination was lodged, “regional Australia” was defined in r.5.19(7) as meaning a part of Australia specified by the Minister in an instrument in writing for this definition. The current legislative instrument is IMMI 18/037. However, IMMI 18/037 only applies to applications lodged on or after 18 March 2018. IMMI 18/037 repealed the previous legislative instrument (IMMI/059).
As neither the current legislative instrument nor its immediate predecessor can be relied on by the Tribunal in making a finding as to whether the position and the business operated by the nominator are located in regional Australia, the Tribunal had regard to the legislative instrument that applied when the applicant lodged the application for approval of the nomination. That legislative instrument was IMMI 16/045. Consistently with Schedule B to IMMI 16/045, the Victorian postcode of 3220, being the postcode identified in the application for approval as the postcode of the place of the applicant’s business is located in regional Australia. Greater Geelong City Council is listed in Schedule A to IMMI 16/045 as an organisation or entity in Victoria specified for the purposes of r.5.19(4)(h)(ii)(F).
Although the RCB certificate concludes that the criteria in r.5.19(4)(e) and rr.5.19(4)(h)(ii)(B) and (C) of the Regulations are not met, the Tribunal accepts that, for the purposes of r.5.19(4)(h)(ii)(F) of the Regulations, the RCB located in the same State as the location of the position has advised the Minister of the matters mentioned in r.5.19(4)(e) and rr.5.19(4)(h)(ii)(B) and (C) of the Regulations. The form 1404 does not set out the reasons why the RCB determined that these matters are not satisfied. However, the applicant’s documents included an email sent on 26 November 2019 to the applicant’s representative that explains that the determination was made due to no skill shortage of Accountants/Taxation Accountants in the Geelong Region and no business actively operating out of the service offices located at Suite 16, Level I, Little Malop Street, Geelong.
Consistently with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a RCB is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. The Tribunal notes that, whilst having regard to the advice provided by the RCB, it is required to reach its own conclusions about the matters the subject of the RCB’s advice.
Genuine need for the nominator to employ the nominee as a paid employee in the position under the nominator’s direct control
For the requirements in r.5.19(4)(h)(ii)(B) to be met the Tribunal must be satisfied that there is a genuine need for the applicant (being the nominator) to employ the person identified under r.5.19(4)(a)(ii) as a paid employee to work in the position of Taxation Accountant (ANZSCO 221113) under the nominator’s direct control for the requirements in r.5.19(4)(h)(ii)(B) to be met. Based on the information in the Department’s file, the Tribunal is satisfied that the nominee is the person identified under r.5.19(4)(a)(ii) of the Regulations.
Amongst other matters, the written submissions of 24 January 2020 address the applicant’s fulfilment of the requirements in r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). Some of the matters in respect of which submissions were made are relevant to both r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). The submissions detail the background to the establishment of the applicant’s business, the circumstances in which Ms Nguyen was employed by the applicant, the current situation of the business and its future prospects. The matters addressed in the submissions are (in summary):
·     As described in the statement of support dated 17 June 2019 by Mr Yip, a director of the applicant, the applicant’s business relies heavily on the knowledge and experience of its staff to provide reliable and professional advice to clients.
·     As the nominee is a professional taxation accountant her role closely fits within the size and scope of the applicant’s business as an accounting firm. As described in Mr Yip’s statement, in addition to the value the nominee adds as a taxation accountant, the nominee’s extensive knowledge and skill relating to SMSF services offer substantial value to the applicant.
·     The nominee adds additional value to the applicant due to her language abilities. As a native Vietnamese speaker with experience of the Vietnamese culture, the nominee is able to communicate with the applicant’s Vietnamese speaking clientele who prefer to engage the professional services of a firm that offers this service. There is a growing demand for candidates with different Asian languages in the Geelong region due to the increase in Vietnamese, Chinese and South East Asian migrants seeking professional services in the Geelong region.
·     The nominee is required to fill the nominator position as it cannot be filled by an Australian citizen or permanent resident living in the area of Geelong.
·     The Australian Bureau of Statistics specifies the occupation of Taxation Accountant as a Skill Level I, with a high level of skill commensurate with a Bachelor degree or higher education. As Level I is the highest skill level classification available and requires a high level of education, it is reasonable that a suitably skilled and qualified candidate for the nominator position could not be found within the Geelong area.
·     As described in the statement of support, the applicant made considerable attempts to fill the nominator position from within the Australian market and was unable to locate a suitably skilled and qualified candidate. The applicant advertised the nominated position between August 2017 and June 2019 on different employment websites with a national reach, including LinkedIn and CareerOne. As described in the genuine need statement, the applicant advertised the nominator position six different times over the course of nearly two years and was unable to locate suitable candidates for the position. The applicant advertised for the nominator position over different time periods in order to recruit a suitable candidate from the local market (for example, the applicant advertised on CareerOne in August 2017). The applicant promoted an existing employee to the advertised position as a suitable candidate could not be located within the Australian market. The applicant advertised for the nominated position again in February 2018, September 2018 and June 2019, and the nominator also placed advertisements on LinkedIn in May 2018 and in October 2018.
·     As described by Mr Yip in his statement, despite the repeated attempts, the applicant has been unable to locate a suitable Australian candidate for the position. The lack of success is mainly due to the high level of skill and qualifications required for the position, the specific needs of the nominator’s clients and the type of employment arrangements being sought by the Australian candidates that applied for the position. The task of recruiting suitably skilled and qualified candidates is even more difficult as the applicant operates in a regional area where few highly skilled candidates are available. In his statement Mr Yip describes receiving only a limited number of applications for the position. The candidates who responded were not suitable for the role as they either did not have the requisite skills or qualifications for the position of Taxation Accountant, or they were not available to work full-time, as required by the applicant. The applicant received responses to its advertisements for the position from candidates with skills and experience in irrelevant fields.
·     The nominee is adequately qualified and experienced to be employed in the nominated position. She completed a Bachelor of Professional Accounting and a Diploma and a Graduate Diploma of Accounting at Holmes Institute in Australia. The nominee has worked continuously for the applicant since July 2017. She commenced her employment with the applicant as a trainee accountant. In May 2018 the nominee was offered a full-time position with the applicant as a Taxation Accountant (the offer of a permanent position, employment contract, human resources manual and payslips were attached to the submissions).
·     As the applicant offers professional services, it relies heavily on the qualifications and abilities of its staff. The applicant has repeatedly recognised the nominee for her performance and competence as a Taxation Accountant. In addition to the nominee’s skills and abilities as an accountant, her experience working for the applicant has provided her with invaluable insight of how the business operates and the requirements of its clients.
·     As the nominee is highly qualified and her level and area of education, skills and work experience is very unique, she is required for the nominated position. In consideration of the nominee’s substantial qualifications, knowledge and professional experience working for the applicant, it is reasonable that a suitable candidate cannot be located in the Geelong region.
·     The applicant’s employees work under the direct supervision and control of the applicant. However, they work out of different offices rather than in one shared location. The applicant offers employees flexible arrangements in order to have better retention of skilled employees. Due to the nature of the professional services offered by the applicant, its employees are not required to remain in the same office as they are able to work remotely with the use of internet and electronic communication.
·     The applicant operates in the area of Geelong, Victoria. The applicant requires a full-time Taxation Accountant. Despite significant attempts to recruit, the applicant has not been able to fill the school vacancy by an Australian citizen or permanent resident who is living in or would move to the Geelong area.
·     The applicant has a genuine need to employ the nominee. The nominated occupation is consistent with the occupation of Taxation Accountant as specified by ANZSCO. As stated in the Accountant Letter provided by Mr Yip, the business is financially sound and in a strong position to pay its employees for at least another two years.
·     Therefore, the applicant meets the requirements and the nomination should be approved.
The application for approval states that the applicant’s business has six employees who are Australian citizens and permanent residents and three foreign employees (that is, non-Australian citizens or permanent residents). The documents provided prior to the hearing include an organisational chart identifying Mr Yip as a full-time employed Taxation Accountant. There is an office administration position held by a part-time employee who is not an Australian resident or permanent citizen and an executive assistant/team administrator position held by a part-time employee who is an Australian citizen. There are five employed Taxation Accountants, all of them being full-time employees. Two of the full-time Taxation Accountant positions are held by Australian. citizens.
The documents that the Tribunal received after the hearing include an updated organisational chart of the applicant’s current organisational structure. Mr Yip’s position remains unchanged. The executive assistant/team administrator position is not listed. The office administration position is listed and is held by the employee identified in the previous organisational chart. Four employed Taxation Accountant positions are listed with three of those positions being held by full-time employees. The remaining position (described as Chartered Taxation Accountant) is held by a part-time employee. Two of the employed Taxation Accountants are identified as Australian citizens. An Assistant Taxation Accountant position is listed as a full-time position. The employee who holds that position is not an Australian citizen.
Mr Yip’s evidence was that he had worked for many years in taxation and has extensive experience as a tax accountant. He is the applicant’s sole director. Previously, around 12 to 18 months ago, another person was the director and he was the Chief Executive Officer. He is a registered tax agent. The applicant is a registered tax agent. The applicant’s accounting practice was established in July 2016. Its practice encompasses work for individuals, companies, partnerships and family trusts. The applicant also does SMSF work. The applicant’s clientele includes clients with a Vietnamese background. Mr Yip told the Tribunal that he wants to expand the applicant’s business overseas. He wants to set up an office in Vietnam.
The Tribunal noted at the hearing that the applicant holds three registered business names, being South Yarra Recruitment, Eden Nails Spa Hair & Beauty and Eden Nails Spa. The Tribunal queried whether the applicant was operating other businesses in addition to its accounting practice. Mr Yip told the Tribunal that the person who was the director before him operated other businesses. They are no longer operating. Since the applicant established its accounting practice in 2016, it has only ever operated a business as an accounting practice, which is the business it currently operates. The oral and documentary evidence that the Tribunal received from the applicant including the written submissions from the applicant’s representative of 26 May 2020 is consistent with the explanation that Mr Yip provided at the hearing and the Tribunal accepted Mr Yip’s explanation.
Mr Yip’s evidence was that he has trained accountants throughout his career. He has trained the nominee, who commenced working for the applicant in July 2017. Initially, the nominee worked part-time. She was holding a student visa. This expired in April 2018 and the applicant offered the nominee a full-time position in May 2018. He has provided extensive training to the nominee, particularly in relation to SMSF work. The nominee mainly does SMSF work. As an example of the training he provides to the nominee, Mr Yip told the Tribunal that he attended a seminar in October 2018, and he provided the course materials he received to Ms Nguyen. He also provides in-house training to the Taxation Accountants. He prepares notes which he distributes to the staff. There are regular group meetings in the boardroom where he provides training to staff. If needed, the group meetings are held every month but if monthly meetings are not necessary, the meetings are held at least every two or three months. Mr Yip told the Tribunal that he does not normally send staff to seminars for training. He is the one who usually attend seminars. He then disseminates the information and materials from the seminars in the training he provides for staff. However, he does send staff to free seminars offered to tax agents including seminars held by the ATO and the Geelong Chamber of Commerce.
Mr Yip confirmed that the applicant had advertised for the position of Taxation Accountant that the nominee currently holds but was not successful in finding a suitable candidate. Mr Yip’s evidence was that there is a genuine need for the applicant to employ the nominee in the position of Taxation Accountant as the nominee possesses the qualifications and skills required for the position. Mr Yip told the Tribunal that the stability of the nominee employee is an important attribute as the retention rate of employees he has previously trained has not been high. By contrast the nominee wishes to continue working for the applicant and she is prepared to work for the applicant overseas. The nominee’s language skills are important to the applicant’s business in Australia and her language skills will enable the applicant to expand its business in Vietnam. Mr Yip told the Tribunal that he is training staff now as part of the preparation for setting up an office in Vietnam. This is why he needs to train the nominee now.
Mr Yip’s evidence was that as the CEO and director of the applicant he is responsible for monitoring staff performance. Mr Yip described the duties and responsibility that the nominee is required to perform currently in her role. The Tribunal notes that his description included the tasks listed in ANZSCO for the position of Taxation Accountant (ANZSCO 221113). Mr Yip gives the employed accountants their work and checks the work of all of the employed accountants. It was evident from Mr Yip’s description that the employed accountants also check each other’s work. The applicant offers flexible working arrangements to its employees, including to the nominee whereby they are able to work four days per week in the applicant’s office and one day remotely, via laptop computer remote access.

Ms Nguyen’s oral evidence in relation to her qualifications and experience, the background to her employment by the applicant, the tasks she performs in her role of Taxation Accountant and her working arrangements, including the arrangements for supervision of her work and the training she receives, was consistent with the oral evidence of Mr Yip. Ms Nguyen explained that she was studying when she saw an advertisement from the applicant for a part-time position. The applicant offered her a full-time position in January 2018 but at that time she still held a student visa. She started working for the applicant full-time in May 2018 when her student visa expired. Ms Nguyen’s evidence confirmed that she wishes to continue working for the applicant and is willing to work for the applicant overseas.
The applicant provided financial documents to the Tribunal prior to and after the hearing. At the hearing the Tribunal had before it the applicant’s financial reports for the 2016/2017 and 2017/2018 financial years. The reports were prepared by the applicant but were not signed by the directors. The compilation reports included in the financial reports were not signed by the applicant as the entity that compiled the financial reports. The Tribunal discussed the applicant’s financial position with Mr Yip, who clarified the matters the Tribunal raised. Mr Yip’s evidence was that the revenue the applicant derives from its professional services is steady. The Tribunal notes the reduction in revenue from professional services recorded in the financial statements from 2016/2017 to 2017/2018. In each financial year, the expenses recorded in the profit and loss statement are equal to and do not exceed the revenue derived from professional services, thus resulting in a profit from ordinary activities before tax of nil. The Tribunal received financial reports for the 2017/2018 financial year from the applicant after the hearing signed by Mr Yip (on 25 May 2020) as the applicant’s director. The compilation report was signed by Mr Yip on behalf of the applicant on 25 May 2020. A letter dated 23 August 2019 from Mr Yip confirms that he completes all of the required accounting for the applicant. The letter attests to the applicant’s financial viability and profitability and Mr Yip’s expectation of the continued future profitability of its business. Mr Yip states that in his professional opinion the applicant is sound financially and is able to meet its financial requirements and pay its employees for a minimum of two years. The Tribunal had no reason to doubt Mr Yip’s oral evidence that the revenue the applicant derives from its professional services is steady.
As to the matter identified by the RCB of whether a business is actively operating out of the serviced offices located at Suite 16, Level I, Little Malop Street, consistently with Mr Yip’s oral evidence and the applicant’s submissions, the applicant provided documents that support its claims that it operates its business from a shared office space at that location. The applicant’s representative submitted that it appeared that when the RCB undertook its inspection the office was closed and it made its determination on that basis. When the RCB was contacted about this, it advised that its decision had already been made and could not be appealed. The documents that the applicant provided include a copy of a Non-exclusive Licence Agreement for Shared Office Space at the premises signed by the applicant as licensee and Big Steel Box Pty Ltd as licensor on 18 July 2017, and a copy of a letter dated 24 January 2020 from Ms P Stathopoulos, Property Manager Batman Management Group, confirming that the applicant has occupied the premises under a licence agreement since 1 July 2017. The documentation available to the Tribunal would appear to be more extensive than that provided to the RCB. Based on the oral and documentary evidence the Tribunal accepts that the applicant operates its business from serviced offices located at Suite 16, Level I, Little Malop Street, Geelong.
The genuine need statement referred to in the submissions dated 24 January 2020 was provided to the Tribunal. The statement is dated 17 September 2019 and is signed by Mr Yip. The statement sets out the background to the business, the nominee’s qualifications, the circumstances leading to the nominee’s employment by the applicant, the applicant’s business structure and the attempts the applicant made to recruit a suitable candidate for the nominated position. The information in this statement is consistent with the oral evidence the Tribunal received at the hearing.
The Tribunal had regard to the evidence the applicant submitted in support of its claims that its specialisation in SMSF work and the cultural and linguistic background of its clientele limit the number of candidates in the Geelong region that would be available to fill the nominated position. The evidence includes information sourced from the “SMSF Specialist Course Workbook” published by SuperConcepts Pty Ltd. (The workbook was issued to Mr Yip who undertook the “Super Concepts and ICFS Specialist SMSF Course”, accredited by the University of Adelaide.) While the Tribunal accepts that the information is indicative of an increasing demand for taxation accountants and for taxation accountants specialising in SMSF work, the Tribunal notes that the information is of a general nature and does not address the applicant’s specific circumstances. The Tribunal notes that the applicant did not stipulate mandatory requirements for specific language skills or experience in the SMSF industry when it advertised for candidates for the nominated position and finds this surprising given the emphasis the applicant has placed on the importance of these attributes to its business. Based on the evidence the applicant gave of the attempts it made to fill the position by advertisements placed on the CareerOne website and on LinkedIn from August 2017 to June 2019, the Tribunal accepts that the applicant had difficulty filling the position. However, weighing against this is the fact that the RCB more recently advised that there is no skill shortage of Accountants/Taxation Accountants in the Geelong region. The RCB advice was given approximately five months after the applicant last advertised for the nominated position.
The evidence that the revenue the applicant derives from its business is stable is not consistent with the applicant’s claims that the business is expanding. The Tribunal understands that the applicant would like to expand and to build its business with the nominee in the position of Taxation Accountant and the Tribunal accepts that the applicant has ambitions to expand its business overseas with the nominee playing a part in that expansion. However, based on the available evidence, the Tribunal is not satisfied that steps have yet been taken to action the proposed expansion and that the applicant’s plans to do so are anything more than unrealised future hopes predicated on its future ambitions.
The Tribunal accepts that a business such as the applicant’s cannot operate without the services of a properly trained and qualified accountant and that having regard to the evidence of the nature, size and scope of the business, the applicant’s business requires the services of properly trained and qualified Taxation Accountants. However, as the application for approval of the nomination of a position was lodged on 10 March 2018, in order for the applicable legislative requirements set out in r.5.19(4)(h)(ii)(B) of the Regulations to be met, the Tribunal must be satisfied that there is a genuine need for the applicant to employ Ms Nguyen (being the person identified under r.5.19(4)(a)(ii)), as a paid employee to work in the nominated position under the applicant’s direct control. This requirement links the nomination to a particular person (in this case, Ms Nguyen) and requires there to be a genuine need for the applicant as nominator to employ Ms Nguyen as that particular person, as a paid employee to work in the nominated position of Taxation Accountant (ANZSCO 221113) under the applicant’s direct control. This requirement must be met at the time of the Tribunal’s decision. For the reasons discussed above, the Tribunal finds that the evidence is insufficient to establish that there is a genuine need for the applicant to employ Ms Nguyen as a paid employee to work in the nominated position of Taxation Accountant (ANZSCO 221113) under the nominator’s direct control. Rather, the Tribunal considers that the evidence is consistent with the applicant’s anticipation of the need to employ a person with attributes similar to those of Ms Nguyen in the event that the business expands in the future.
Based on the oral and documentary evidence the Tribunal is satisfied that the applicant has not demonstrated that the requirements in r.5.19(4)(h)(ii)(B) are met.
Accordingly, the requirements of r.5.19(4)(h) are not met.
The Tribunal observes that it is possible that the fact that the applicant and Mr Yip are no longer registered tax agents may have had some effect on nature and scope of the applicant’s business. However, the arrangements described by Mr Yip in his letter of 18 January 2021, namely that an employee who is a registered tax agent is currently responsible for overseeing tax return lodgement with the ATO and that an external auditor is used for SMSF work, are legitimate arrangements open to be applied by accounting practices in the management of their workload. The Tribunal, therefore, placed no weight on this in concluding that the requirements in r.5.19(4)(h)(ii)(B) are not satisfied and instead relied on the oral evidence and documentary evidence and reached its conclusion based on the findings set out in these reasons.
For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Amanda Ducrou
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)     all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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).

[2021] AATA 407

17 February 2021

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