Florence Patrick Consulting Pty Ltd (Migration)

Florence Patrick Consulting Pty Ltd (Migration) [2021] AATA 406 (17 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Florence Patrick Consulting Pty Ltd
CASE NUMBER:  1800650
DIBP REFERENCE(S):  BCC2017/2784590
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 12:29pm
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 19 December 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 4 August 2017. 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 Kompheakratana Mao 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)(B) of the Regulations because the delegate was not satisfied that the applicant demonstrated that there is a genuine need for the applicant, as the nominator, to employ the nominee, being Ms Mao, as a paid employee to work in the position of Taxation Accountant (ANZSCO 221113) under the applicant’s direct control. The delegate found that r.5.19(h)(i)(A) of the Regulations does not apply to this application and as the delegate determined that the applicant had not demonstrated that it met the requirements of r.5.19(4)(h)(ii)(B) of the Regulations, the delegate concluded that r.5.19(4)(h) of the Regulations is not met.
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 2:30pm (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 15 January 2020 the Tribunal received the applicant’s response to the hearing invitation. The Tribunal also received an Appointment of Representative/Appointment of Authorised Recipient MR Division form (MR5) appointing Mr Jamie Lingham, a registered migration agent, as the applicant’s representative and authorised recipient in relation to the review.
On 30 January 2020, prior to the scheduled hearing time, the Tribunal received documents from the applicant including written submissions dated 24 January 2020 from the applicant’s representative. 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 Kompheakratana Mao. Mr Yip and Ms Mao gave evidence separately at the hearing. The applicant’s representative, Mr Lingham, was present at the hearing. At the hearing 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 3 February 2020 the Tribunal received an email from the applicant’s representative. The email listed documents that the applicant was invited to provide following the hearing and asked the Tribunal to advise if any documents were not included in the list. The Tribunal wrote to the applicant on 5 February 2020 and advised that in addition to the listed documents, the Tribunal had invited the applicant to provide full signed financial statements for the applicant for the 2017/2018 financial year and further written submissions addressing whether the relevant criteria in r.5.19 of the Regulations are met in relation to the application for approval of a nominated position. The letter confirmed that the applicant was invited to provide the requested information by 28 February 2020 and 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 Tribunal’s 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 24 February 2020 the Tribunal received a request from the applicant for an extension of time to provide the information because the applicant was still in the process of obtaining documents. On 26 February 2020 the Tribunal wrote to the applicant and advised that an extension of time to provide the information was granted until 13 March 2020. The letter noted that the applicant could request an extension of time, but any such request must be received before 13 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 at the email address provided in connection with the application for review.
On 7 April 2020 the Tribunal received some, but not all, of the information and/or documents that the applicant was invited to provide. On 15 April 2020 the Tribunal received a request from the applicant for an extension of time to provide the information referred to in the Tribunal’s letter of 5 February 2020. No reason was provided for the request. On 20 April 2020 the Tribunal wrote to the applicant and advised that an extension of time to provide the information was granted until 4 May 2020. The letter noted that the applicant could request an extension of time, but any such request must be received before 4 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 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 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.
On 14 December 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Migration Act 1958 (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 the applicant’s representative requesting an extension of time to provide comments on or respond to the information particularised in the Tribunal’s letter dated 14 December 2020. The extension of time was requested on the basis that the applicant was still in the process of providing a response. The Tribunal also received an email from the applicant on 29 December 2020 requesting an extension of time to 18 January 2021 to provide its comments or 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 14 December 2020 was granted until18 January 2021. The letter explained that if the comments or response was 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 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 14 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 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 Tribunal had undertaken its search of the website at an unfortunate time as the website is currently being updated. The applicant engaged an overseas company to update the website and it had been taking time for problems with the website to be fixed. The public holiday during the week of the hearing has also affected this. Mr Yip told the Tribunal that he would contact the applicant’s information technology consultant after the hearing to rectify the problem as if the website is down it is not supposed to be down. 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 25 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 letter that the Tribunal wrote to the applicant on 14 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 4 August 2017, Florence Patrick Consulting Pty Ltd lodged a nomination application under the Direct Entry stream, nominating Kompheakratana Mao in the nominated position of Taxation Accountant (ANZSCO 221113) (the nomination).
·     On 19 December 2017, a delegate of the Minister for Immigration refused the nomination, and on 8 January 2018 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 4 August 2017 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 4 August 2017 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, Kompheakratana Mao) 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 Kompheakratana Mao 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 is 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.
Genuine need for the nominator to employ the nominee as a paid employee in the position under the nominator’s direct control
The Tribunal must be satisfied that there is a genuine need for the nominator to employ the person identified under r.5.19(4)(a)(ii) as a paid employee to work in the position 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.
The delegate noted the following:
·     The applicant operates under an Australian Business Number (ABN).
·     ABN and Australian Securities and Investments Commission (ASIC) register checks indicate that the applicant has three business names, namely: Eden Nails Spa Air & Beauty; South Yarra Recruitment; and Florence Patrick Consulting.
·     The applicant’s website includes information about those businesses.
·     Compilation financial statements were provided for the applicant’s ABN for the 2016/2017 financial year, prepared by Patrick Lawrence Yip. The financial statements recorded: total income of $880,727; total salaries of $180,780; and superannuation contributions of $17,174.10.
The delegate found that the applicant had presented a claim in the application for approval of the nomination of the position in Australia to have a genuine need to employ Ms Mao but that there was no evidence to substantiate this claim. As the delegate found that there was no evidence to substantiate the claim, the delegate gave the claim no weight and determined that r.5.19(4)(h)(ii)(B) of the Regulations is not met.
The applicant’s documents include 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 Tribunal notes that in order for the requirements in r.5.19(4)(h)(ii)(F) to be met, the Tribunal must be satisfied that a Regional Certifying Body (RCB) located in the same State or Territory as the position has advised the Minister about these matters.
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. Therefore, for the requirements in r.5.19(4)(h)(ii)(B) to be satisfied the applicant must demonstrate to the Tribunal’s satisfaction that there is a genuine need for the applicant (being the nominator) to employ the person identified under r.5.19(4)(a)(ii) (being Ms Mao - the nominee) as a paid employee to work in the position of Taxation Accountant (ANZSCO 221113) under the applicant’s direct control.
The written submissions dated 24 January 2020 from the applicant’s representative address the applicant’s fulfilment of the requirements in r.5.19(4)(h)(ii)(B). The submissions detail the background to the establishment of the applicant’s business, the circumstances in which Ms Mao was employed by the applicant, the current situation of the business and its future prospects. The matters addressed in the submissions are (in summary):
·     The application for approval of the nomination of a position was made on 4 August 2017. The delegate’s decision was received on 19 December 2017. The applicant was not requested to provide further information in support of the application prior to the delegate making the primary decision. While documents were provided to the Department in support of the application, it appears that the advice from the RCB had not been provided and that this has contributed to the outcome of the application.
·     Departmental policy sets out matters that should be considered in determining the application, including the following (extracted by the applicant with added emphasis):
The RCB will have specialised knowledge in regard to whether the position can be filled locally by virtue of their location, local knowledge and experience. The delegate may generally accept the advice provided in regard to this criterion, unless there is clear evidence supporting an opposing point of view.
·     Disregarding advice provided by the RCB is not without precedence. This is particularly true for the RCB in Geelong. In the decision of the Migration Review Tribunal made by Member Burns on 4 May 2015 in the case of Mick McGuane Housing Construction Pty Ltd (MRT case number 1313667), the RCB was found to be incorrect in relation to its assessment of advertising periods.
·     The applicant is an accounting firm that offers accounting, bookkeeping, company payroll services and superannuation. The applicant has a specific focus on SMSF work and also on Asian clientele, specifically the Cambodian, Chinese and Vietnamese markets.
·     There has been a steady growth in the applicant’s client list since it opened. The applicant’s clients are located all around Australia and can be serviced from the applicant’s office in Geelong. The applicant would like to capitalise on the growing Chinese and Vietnamese populations of Geelong. The applicant believes that a number of members of the Asian communities that it is targeting in Geelong do not have accountants and tax advisers in Geelong, with their advisers being located in major metropolitan regions including Melbourne and Sydney. The applicant is of the view that the use by these people of advisers in metropolitan centres is due to trust and cultural understanding they believe to have with members of their own community. For this reason, the applicant believes that there is significant opportunity to grow its business and keep these services in the greater Geelong region.
·     The current lease for the applicant’s business premises is a non-exclusive license agreement for office space. The applicant’s business is located at Suite 16, level I, 87 Little Malop Street, Geelong in Victoria. The location of the applicant’s business is identified in its business cards, website and in the Yellow Pages. The applicant is registered with the Tax Practitioners Board (TPB). The TPB lists the applicant’s business address.
·     The applicant understands from feedback received from the RCB in Geelong that the RCB did not believe that the applicant is a genuine business operating from the premises at 87 Little Malop Street, Geelong. The applicant concedes that the applicant’s office is one of a group of offices, similar to a co-working space, but it is not unusual for these types of arrangements to be entered into by businesses for reasons including cost minimisation and offering flexible working arrangements to employees. Information sourced by the applicant from Commercial Real Estate and JLL demonstrates an increase in space leased to co-working operators and an increasing flexibility by organisations and employees regarding working habits.
·     The applicant has a diverse workforce and is committed to flexible working arrangements for its employees. The nominee relies on the flexibility of working from home or in the office due to her caring responsibilities for her child. This flexibility is a significant part of the attraction to the nominee of working for the applicant.
·     The fact that companies do not operate out of large offices, with multiple employees working on site does not mean that they are illegally operating or that they do not experience skills shortages. In this instance the applicant has demonstrated that there are reasons for operating its business in the way it does from its business premises.
·     The applicant requires a Taxation Accountant (ANZSCO 221113) who will work under the applicant’s direct control. As demonstrated in the Genuine Need Statement, the applicant relies heavily on its accountants to provide accurate and timely service and advice to clients on complex matters. The nominated position is highly skilled and specialised and requires a candidate with significant qualifications and experience.
·     The nominee has been employed by the applicant as a Taxation Accountant since July 2017. Previously, from January 2017 the nominee was employed by the applicant as a Trainee Accountant. The nominee is qualified for the nominated position of Taxation Accountant having completed a Master of Professional Accounting at RMIT. The nominee will work in the nominated position under the direct control of the applicant’s director, who is a qualified Taxation Accountant.
·     A search that the applicant undertook and data the applicant has obtained demonstrates the current number of job vacancies for accountants advertised in the City of Greater Geelong. Based on the information accessed by the applicant, the applicant has estimated the number of accountants in Geelong as a percentage of population. Advertising data reflects a vacancy rate for accountants in Geelong of almost 7%. This together with the fact that the applicant operates in a niche industry, specialising in SMSF work and is targeting the Asian market, would significantly limit the number of candidates available in the Geelong region to fill the nominated position.
·     Despite the requirements of the applicant’s business, the applicant’s first priority was to advertise for core-skill sets for accountants and the applicant did not restrict its advertising by asking for specific language skills or experience in the SMSF industry. Despite this, the response rate for advertisements placed by the applicant was extremely low and was, overall, unsuccessful in locating skilled and experienced applicants for the nominated position.
·     On balance there are sufficient factors which point to the fact that the applicant is legally operating a successful business and has a genuine need for a paid employee to take on the position of accountant. The discretion to refuse the application should not be exercised and the Tribunal should set aside the decision under review and substitute a decision not to refuse the nomination application or the associated visa application of the nominee.
The application for approval states that the applicant’s business has three employees who are Australian citizens and permanent residents and one foreign employee (that is, non-Australian citizen or permanent resident). The applicant provided an organisational chart with the written submissions dated 24 January 2019 which identifies Mr Yip as the applicant’s Director, with responsibility for decisions made by the Board of Directors, and also as the Business Consulting Executive/Senior Taxation Accountant, reporting to the Board of Directors. Mr Yip is identified as a full-time employee and an Australian citizen. Another employee is the Executive Assistant/Team Administrator who reports to Mr Yip. That employee is a part-time employee and an Australian citizen. The organisational chart lists four Taxation Accountant positions with three being full-time positions and one being a part-time position. The nominee is identified as the holder of one of the full-time positions. Another full-time position is held by a person who is the subject of a separate application made by the applicant for approval of the nomination of a person in Australia. The holders of the other two full-time Taxation Accountant positions and the holder of the part-time Taxation Accountant positions are identified as Australian citizens.
Mr Yip told the Tribunal that the applicant has more recently engaged an additional employed Taxation Accountant. They are an Australian citizen and are employed part-time. Mr Yip gave evidence that he and one of the full-time Taxation Accountants and the part-time Taxation Accountant are registered tax agents. The documents that the Tribunal received from the applicant on 25 May 2020 included an organisational chart. The chart identifies Mr Yip as the applicant’s sole director and also as a full-time employed Taxation Accountant and Australian citizen. There is an office administration position held by a part-time employee. There are three employed Taxation Accountants, all of them being full-time employees. The Chartered Taxation Accountant position that Mr Yip identified at the hearing is listed in the organisational chart. There is also an Assistant Taxation Accountant position held by a full-time employee. Including Mr Yip, three employees are identified as Australian citizens. The other employees are identified as holders of Australian issued visas and are not Australian citizens or Australian permanent residents.
Mr Yip’s evidence was that he had worked for over 20 years in taxation and has extensive experience as a tax accountant. As well as being a registered tax agent, he is a member of the Institute of Public Accountants and a member of the National Tax Agents’ Association. Mr Yip told the Tribunal that the applicant is a registered tax agent. He wanted to establish an accounting practice specialising in taxation and SMSF work and targeting the Asian market. The applicant’s accounting practice was established in July 2016, which was when the applicant was registered as a company. The applicant purchased his existing client base. This is recorded in the applicant’s financial statements as goodwill. Mr Yip told the Tribunal that he wants to expand the applicant’s business by opening overseas branch offices in Vietnam and Cambodia. As well as its tax and superannuation fund clients, the applicant does work for other accountants who, due to lack of capacity, outsource work to the applicant. The applicant also does contract work for other external entities which are not accountants.
Mr Yip told the Tribunal that he had trained accountants at all levels during the course of his career. He has trained the nominee, who commenced working for the applicant in July 2016. The applicant advertised on Career One and the nominee responded to the advertisement. Initially, the nominee worked part-time for the applicant. She became a full-time employee in August 2017. Mr Yip told the Tribunal that there is a genuine need for the applicant to employ the nominee in the position of Taxation Accountant as she possesses the qualifications, skills and attributes that meet the applicant’s business requirements. She is a qualified accountant and was qualified when she commenced with the applicant. Prior to working for the applicant, the nominee worked as an accountant, but she did not have experience in SMSF work. Mr Yip considers that the nominee possesses attributes that made her an ideal candidate and suitable to be trained by him including her great attention to detail and being a stable person with a stable family situation. These attributes are very important as he cannot afford to train staff who then leave, and it is important for the business to have a low staff turnover. He has trained the nominee successfully with an emphasis on SMSF work. This is a growth area due to the ageing of the Australia population and is an important part of the applicant’s business. In addition, the nominee can speak the Mandarin and Cambodian languages and is able to communicate and understand the culture of Asian clients. Mr Yip told the Tribunal that the nominee is well placed to work overseas for the applicant when the applicant’s business expands.
Mr Yip’s evidence was that as the CEO and director of the applicant he is responsible for monitoring staff performance. The duties and responsibilities that the nominee is required to perform in her role as Taxation Accountant for the applicant include all of the tasks listed in ANZSCO for the position of Taxation Accountant (ANZSCO 221113). While the nominee performs all of the listed tasks in her role, the type of work she does varies from day-to-day. Mr Yip gives the employed accountants their work and checks the work of all of the employed accountants, even the employee, who is a registered tax agent. In addition, the employed accountants cross-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 Mao’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 was generally consistent with the oral evidence of Mr Yip, although Ms Mao did not refer to having worked as an accountant prior to commencing employment with the applicant. Ms Mao told the Tribunal that she had studied in Melbourne and had applied for positions in the Melbourne central business district but found it hard to find work because she had no experience. Ms Mao confirmed that Mr Yip had told her that the applicant will open overseas offices and that she is willing to work for the applicant overseas. Ms Mao told the Tribunal that she wishes to continue working for the applicant on a long-term basis.
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 at the hearing. Mr Yip’s evidence was that the revenue the applicant derives from its professional services is steady. A reduction in revenue from professional services is recorded in the financial statements from 2016/2017 to 2017/2018. However, 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 2016/2017 and 2017/2018 financial years from the applicant after the hearing signed by Mr Yip (on 25 May 2020) as the applicant’s director. The compilation reports were signed by Mr Yip on behalf of the applicant on 25 May 2020. While the Tribunal found some aspects of the financial documents and Mr Yip’s oral evidence of the applicant’s financial affairs surprising, including the extent to which the applicant outsourced work to external accountants, 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 documents provided to the Tribunal 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 the clientele it is targeting significantly limits the number of candidates in the Geelong region that would be available to fill the nominated position. The evidence includes information sourced from the ATO and IBIS World. 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 the applicant’s acknowledgement that it 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 Career One 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 the 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 4 August 2017, 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 the there is a genuine need for the applicant to employ Ms Mao (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 Mao) and requires there to be a genuine need for the applicant as nominator to employ Ms Mao 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 Mao 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 Mao 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 the 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 406

17 February 2021

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