In Home Taxation Services Pty Ltd ATF KMH Tax & Business Solutions (Migration)

This matter concerned a review of a decision to refuse the nomination of a taxation accountant for a Subclass 457 visa. The applicant for review was In Home Taxation Services Pty Ltd ATF KMH Tax & Business Solutions (Migration) (KMH), a growing accounting firm. The dispute arose because the Department of Immigration and Border Protection refused to approve KMH's nomination of an overseas worker for the position of Taxation Accountant. The Tribunal was asked to determine whether the nomination met the relevant criteria under the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the nominated position was genuine and whether KMH had adequately demonstrated a genuine need for the nominated overseas worker. Specifically, the Tribunal considered whether the vacancy had been advertised appropriately, if there was any familial connection between the nominee and the business owner, and if the nominee was actually working in the nominated position. The Tribunal also examined the evidence regarding the recruitment process and the business's existing staffing levels to assess the genuineness of the vacancy.

The Tribunal affirmed the decision to refuse the nomination, finding that KMH had not satisfied the criteria for approval. The Tribunal noted that the position was not advertised, and the explanation for this was vague. Furthermore, while the business owner denied any familial connection, the nominee's resume indicated her husband was a director of a company where she had previously worked, raising questions about potential indirect connections. Crucially, the Tribunal found that KMH had not demonstrated a genuine need for the nominated position, particularly given its existing qualified staff and the lack of a transparent recruitment process for the vacancy. The Tribunal concluded that the position was not genuine, as required by regulation 2.72(10)(f).