JL Investment Group Pty Ltd (Migration)
[2021] AATA 330
•4 January 2021
JL Investment Group Pty Ltd (Migration) [2021] AATA 330 (4 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: JL Investment Group Pty Ltd
CASE NUMBER: 1821390
HOME AFFAIRS REFERENCE(S): BCC2017/2154620
MEMBER:De-Anne Kelly
DATE:4 January 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 04 January 2021 at 1:22pm
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition – ANZSCO 221111 Accountant (General) – tasks to be performed in the nominated position do not correspond to the tasks of the occupation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, r 5.19STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 July 2018 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 19 June 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 Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i) of the Regulations because the applicant failed to demonstrate that they fulfilled the commitments toward meeting training benchmarks and it was not reasonable to disregard this and find that the applicant met r.5.19(3)(f)(ii).
The applicant appeared before the Tribunal on 8 September 2020 to give evidence and present arguments. At the request of the registered migration agent this was a multiple hearing of two employer nomination refusal reviews for the applicant being case numbers 1808862 and 1821390 and the related visa application refusal reviews being respectively case numbers 1816834 and 1824750. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
A second hearing was held on 19 November 2020.
The applicant was represented in relation to the review by its registered migration agent Mr Joel McComber MARN: 1793340 of Sentry Law, Brisbane Qld 4000 who was appointed shortly before the hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Since the hearings were combined and to ensure a fair and just consideration of all the evidence the Tribunal has cross referenced all of the supporting evidence and ensured that all documents whether provided for one or the other of the applications have been collated and considered for both cases.
Ms Tina Tian, the Executive Officer represented the company at the hearing. The business imports and distributes furniture to the wholesale sector from an address in Banyo, Qld 4014 and commenced operation in 2012. The application states it has 11 Australian employees and three foreign skilled employees. The directors of the company are Mr Tao Wang and the nominee, and they are equal shareholders.
On 9 June 2017, the applicant JL Investment Group Pty Ltd trading as Ridgeway Furniture in Banyo, Qld 4014 lodged an Employer nomination – visa Subclass 186 application in the Temporary Residence Transition nomination stream for the position of ANZSCO 221111 Accountant (General) on $58,000 in favour of Ms Chunjiao Ren.
Documents including the following were submitted;
1)Online application - 4671448] CLD201720850307 - System Generated PDF File-EGOEXMJSOP_application.pdf-ENS-NOM.
2)Acknowledgement of nomination application dated 19 June 2017.
3)Leave record for the nominee dated 6 March 2017.
4)Financial statements for the year ended 30 June 2016.
5)Certificates of commitment to training.
6)Tax receipts for training, including one dated 4 June 2014 from Vision Accounting for a five day course of MYOB day-to-day processes delivered to Yuk Yee Tang.
7)Statement of employment regarding the nominee dated 2017.
8)Position description.
9)Payroll activity 2015 to 2016; 2016 to 2017 and 2007 to 2018.
10)Pay scale markets salary analysis.
11)Employment contract for the nominee dated 20 March 2014 and 1 March 2017 both signed by both the applicant and nominee and with a job description as follows:
·serve the Company faithfully and diligently and at all times act in the best interest of our Business;
·devote the whole of your working time, attention and ability to the Company;
·use your best endeavours to protect, develop and promote the Company’s reputation and Business; and
·give effect to the directions and instructions from time to time given by the directors of the Company.
·Have the expertise and qualifications necessary to perform your duties and will perform them to a standard appropriate to a person having that expertise and qualifications. You must maintain that expertise and qualifications.
12)Letter advising nominee’s wage increase to $58,000 dated June 2017.
13)Submissions from legal firm dated 19 June 2017 on 14 May 2018.
14)Request for more information from the Department of Home affairs dated April 2018.
15)BAS 2016; 2017; 2018.
16)ASIC registration 2018.
17)Bank statements 2017; 2018.
18)Financial statements to 30 June 2017.
19)Passports and evidence of Australian citizenship for employees.
20)Organisation chart dated 2018 showing the Director Mr Wang; the Executive Officer Ms Tian and then six employees on the same senior level namely the Office Manager; Accountant; Management Consultant; Accountant (the nominee); Finance Officer and Administration/Reception. Under the Office Manager is shown the Warehouse Manager; Truck Driver and warehouse staff. Under the Management Consultant is an IT position. There are no positions reporting to the nominee nor are there any positions under the nominee.
21)Company tax return 2017.
22)ABN registration.
23)PAYG payment summary for the nominee for FY 2016; 2017.
24)Notice of decision nomination refusal dated 9 July 2018.
25)Submission from the registered migration agent dated 1 September 2020 stating that: ‘In relation to criteria (d): a) both Mr Zhu and Ms Ren will be employed on a full‑time basis in the position for at least 2 years.’
26)Letter from registered migration agent dated 10 September 2020 regarding the nominee’s work as an accountant.
27)Integrated client account history.
28)Statutory declaration dated 9 September 2020 from Miss Tian.
29)Letter dated 9 September 2020 from Q&T accountants regarding the services to the applicant.
30)Letter dated 9 October 2020 from the Tribunal inviting comment on the profit and loss for FY 2020.
31)Letter dated 19 October 2020 from the registered migration agent advising a profit of $35,531 in FY 2020.
32)Notice of decision and nomination refusal notice dated 9 July 2018.
33)Range of documents relating to the training requirements.
34)Profit and Loss Statement for FY 2020.
35)Print out of bank balance statements.
36)Letter dated 1 September 2020 from the registered migration agent requesting that all four applications be set down for hearing on the same day.
37)Request for the second hearing scheduled for the afternoon of 19 November 2020 to be rescheduled.
38)Response from the Tribunal rescheduling the hearing to the morning of 19 November 2020.
Documents including the following were provided after the second hearing:
39)Letter dated 3 December 2020 from the registered migration agent detailing the financial documents provided.
40)Bank statements from 1 July 2019 to 30 October 2020.
41)Bank statement for the cash reserve.
42)Integrated Client account for 1 September to 25 November 2020.
43)Letter from the Australian Taxation Office (ATO) regarding payment plan.
44)PAYG report for FY 2020 showing the nominee paid gross wages of $17,846 for FY 2020.
45)Draft financial report; profit and loss and balance report for FY 2020.
46)Aged receivables and backorder sales report as at 19 November 2020.
47)Statutory declaration from Mr Wang regarding financial status of the company and the capacity of the company to pay the nominee.
Adjournments and postponements
During the hearings the applicant requested two brief adjournments which were granted.
The applicant requested a postponement of the second hearing to accommodate a medical matter and the hearing was duly rescheduled.
Section 359AA of the Act
At the commencement of both hearings, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full-time basis for at least two years on terms that do not expressly preclude the possibility of an extension.
The Tribunal put to the applicant the concern over the substantial loss in FY 2018 and noted that without the Job Keeper subsidy of $48,000 the company would have a sustained loss of $12,469 in FY 2020.
Tax return 2017 2018 2019 2020 Income 3,831,571 3419328 2,933,334 3,450,203 Wages 500,126 465,611 Superannuation 46,159 44,164 Expenses 3,805,797 3,790,072 2,916,840 3,485,725 Profit 37,509 (344,192) 16,494 35,531
The executive officer responded in the hearing and advised that the company had a large customer fail in 2018 owing the company more than $300,000 and this had negatively impacted their profits however they had updated their management control systems, and this would not happen again. With regards to 2020, the company was on Job Keeper because they had a downturn in March / April which made them eligible for the Job Keeper subsidy of which the company received $48,000 in 2020. The loss would have been some $12,469 had the Job Keeper subsidy not been provided to the company.
The Tribunal wrote to the applicant, pursuant to s.359A, where it expressed concern that the company had incurred a loss of $35,531 in FY 2020 and that without Job Keeper this would have been even greater. In the agent’s submission of 19 October 2020, he corrects the record and states that the company had a profit of $35,531 for FY 2020 and had the applicant not received the Job Keeper subsidy it would have had to reduce wage liabilities by reducing staffing levels and would not have paid the Job Keeper top-up amounts of $22,956.90. He goes on to state that even in the absence of receiving the Job Keeper subsidy, the applicant would have achieved a net profit of $10,488. Be this as it may, it does not change the fact that the business, like many other businesses, relied on the Job Keeper subsidy.
It is noted that the Tribunal wrote to the applicant on 30 March 2020 and requested the following:
Information about the applicant directly operating an active and lawful business
in Australia, including its financial circumstances;
The applicant’s lodged tax returns for the last two full financial years,
business activity statements that have been lodged with the ATO for
the last 24 months and financial statements prepared in accordance
with Australian accounting standards, including profit and loss
statements and balance sheets, for the most recent two financial years.It is evident that the applicant would have been aware that the business’s financial circumstances were an important matter that needed to satisfy the legislative requirements for the grant of the employer nomination.
The Tribunal has examined the BAS but the latest available is Q4 2019 so it does not provide further information that cannot be found in the financial statements and tax returns.
The Tribunal examined the 2019 tax return and found the business had tax losses carried forward to later income years of $293,150. Although Ms Tian provided an explanation for this loss it is noted that it was not due to investment in expanding the business which might be a reasonable explanation but was a genuine loss due to trading losses. The Tribunal notes the explanation given for the loss and the assurance that systems have been put in place to prevent it occurring again but scant evidence of that has been provided and a loss is still a loss which is carried forward.
The Tribunal also notes from the Financial Statements for 2019 that the applicant has negative equity in the company of $304,918. This is made up of total liabilities of $1,797,863 and total assets of $1,492,945 however included in the assets is inventories or stock worth $553,154 and property, plant and equipment of $86,677. These would fetch as little as 20 to 30 cents in the dollar were the company to be wound up and indicate that the financial situation is more parlous than the negative equity would suggest.
The accountant acknowledges this deficiency of net assets in the company in the “Notes to the Financial Statements for the Year ended 30 June 2019” where they state:
Notwithstanding the deficiency of net assets in the company, the financial report of the company has been prepared on a going concern basis. This basis has been applied as the directors have received a guarantee of continuing financial support and it is the directors’ belief that such financial support will continue to be made available.
It is noted that the accountant states the directors have received a guarantee of continuing support and that they believe that this financial support will continue to be available. No evidence was provided of this financial support or evidence of the basis on which the directors believe it will continue to be available. As such the Tribunal can place little weight on the accountant’s reassurances.
The Job Keeper payment and downturn in FY 2020 on its own is not enough to cause the Tribunal major concern however combined with tax losses carried forward of $293,150; negative equity in the company of $304,918 and nebulous and unsubstantiated assurances of guarantees of financial support the Tribunal is deeply concerned over the financial viability of the company.
Second hearing
In the second hearing under s.359 AA the Tribunal put to the applicant the FY 2020 Profit achieved by utilising Job Keeper, the ongoing tax losses, the negative equity and the unsubstantiated “guarantee of continuing financial support”. The tasks of the position in relation to the ANZSCO position were not discussed at the second hearing.
The applicant requested and was granted an adjournment for 20 minutes.
Ms Tian stated that regarding the big loss in 2018 they have explained that for a new business a customer company went bankrupt and created a bad debt which was carried forward. The negative equity on balance sheet is ameliorated by the director loans and they are willing to invest more money with the business. Equity figures are increasing, and sales figures are increasing each month. Total net profit from July to October is $352,000. They have back orders of $1,030,000 and forecast and accounts receivable figures of $288,940.
The Tribunal notes the financial information provided after the second hearing and is not basing a decision on the financial viability of the business.
Position corresponds to the ANZSCO Accountant
During the first hearing the Tribunal under s.359AA of the Act raised with the executive officer Ms Tian the concern that it did not seem that the nominee had ever been employed in the position of Accountant and may not be into the future. This was based on the job description in the employment agreement and the range of tasks undertaken by the firm of CPA accountants who prepare the BAS and tax returns for the company.
It seemed that the nominated position of accountant and the higher-level tasks of that position were undertaken and had been undertaken since 2014 by the CPA accountants Q&T Accounting and that without these higher level tasks it may be the nominated role was more of a bookkeeping, accounts or wages clerk position.
For clarity the information that dealt with the nominated position’s tasks was as follows:
8) Position Description:
Position Title: Accountant
Direct Reports: Director/Principal
Internal Interaction: Directors and staff
External Interaction: Clients and external parties as required
Summary
Accountant in our company is a hands on position, responsible for the
efficient running of the organisation’s accounts including everyday duties such
as general entries, balance sheets, ledgers, reporting and advice management
on tax issues, budgets and forecast and planning.
Key Responsibilitiesa)1. Preparation of annual financial budget plan in accordance with economy
prediction, annual operating plan and financial reports of the company;
b)Making monthly, quarterly, annual financial analysis and providing financial
information for the managers of company to make decision and to assess
assets valuations;c)Being responsible for paying salary to employees and withhold and pay the
tax for employees;
d)Being responsible for company’s financial affairs, preparing financial reports
and taking participation in financial reports audit;
e)Checking all types of original voucher, making accounting voucher to ensure
the truth and legitimacy of all types of voucher;
f)Filling and making subsidiary account, general ledger;
g)Taking charge of management for computer’s keeping account, settling account and accounts book output;
h)Verifying the truth, legitimacy and completeness of relevant statements and
calculation table;
i)Coordinating the audit of annual income tax return;
j)Taking participation in the checking inventory of fixed assets, making
analysis for the useful effect of fixed assets, promote the reasonable use of
fixed assets and improve the utilization ratio of fixed assets.Prerequisites for this role
1. Diploma in Accounting or above
2. At least three years’ experience in relevant roles11) Employment contract for the nominee dated 20 March 2014 and 1 March 2017 signed by the applicant and nominee and with the job description:
·serve the Company faithfully and diligently and at all times act in the best interest of our Business;
·devote the whole of your working time, attention and ability to the Company;
·use your best endeavours to protect, develop and promote the Company’s reputation and Business; and
·give effect to the directions and instructions from time to time given by the directors of the Company.
·Have the expertise and qualifications necessary to perform your duties and will perform them to a standard appropriate to a person having that expertise and qualifications. You must maintain that expertise and qualifications.
20) Organisation chart dated 2018:
Shows the Director Mr Wang; the Executive Officer Ms Tian and then six employees on the same senior level namely the Office Manager; Supply & Distribution Manager; Management Consultant; Accountant (the nominee); Finance Officer and Administration/Reception. Under the Office Manager is shown the Warehouse Manager; Truck Driver and warehouse staff. Under the Management Consultant is an IT position. There are no positions reporting to the nominee nor are there any positions under the nominee. However, the Tribunal noted that a different organisation chart was submitted for another employer nomination for a different nominee and it shows the Financial Officer reporting to the nominated position.
25) Submission from the registered migration agent dated 1 September 2020 stating that: ‘In relation to criteria (d): a) both Mr Zhu and Ms Ren will be employed on a full‑time basis in the position for at least 2 years.’
26) Letter from registered migration agent dated 10 September 2020 regarding the nominee’s work as an accountant and stating ‘in respect of application number 1821390, that the nominee Chunjiao Ren, a. had not been employed; and b. would not be employed, in the position of Accountant for the purposes of the criteria prescribed by sub-paragraphs (c)(i)(A)(II) and (d)(i) of section 5.19(3) of the Migration.’
Also stating that Ms Tian had advised in the hearing that external accountants undertake 15 hours of work annually however in the subsequent advice from the accountants it is 25 hours per annum.
In respect of Ms Ren’s work as an accountant:
a. the applicant’s external accountant’s work is limited to settling and lodging Business Activity Statements and Income Tax Returns as well as some interim reports;
b. all other accounting work is performed by Ms Ren, including: i. formulating budget and accounting policies; ii. preparing financial statements for internal review by the applicant’s director and senior managers; iii. preparing financial reports and information relied on by the applicant’s external accountant in preparing ATO lodgements and interim reports; iv. monitoring operating costs, income and expenditure; v. supervising and maintaining the applicant’s accounting systems; vi. monitoring and planning fixed-asset usage;
c. more basic bookkeeping tasks are in fact performed by the applicant’s accounts assistance, who works under the supervision of Ms Ren;
d. a business of the applicant’s size (over $3.5 million in annual turnover) would require more than 25 hours of accounting-related work to be performed, such that the retention of an external accountant does not eliminate the need for an internal accountant.’
The registered migration agent states that Ms Ren will be employed in her role under r.5.19(3)(d)(i).
28) Statutory declaration dated 9 September 2020 from Miss Tian:
Accountant - Chunjiao (Springna) Ren
1.JLIG has nominated Chunjiao (Springna) Ren for the role of Accountant.
2.During the hearing , the Tribunal suggested that JLIG' s use of an external accountant to settle and lodge JLIG's Quarterly Business Activity Statements and Income Tax Returns indicated that Ms Ren does not perform the role of an accountant and may be performing a role more similar to that of a bookkeeper (ANZSCO 551211) .
3.I can confirm that JLIG retains Q&T Accounting Services to settle and lodge our Quarterly Business Activity Statements and Income Tax Returns. My understanding is that it is usual for a business of our size ($3.5 million annual turnover) to both employ an internal accountant and retain an external accountant to handle lodgments with the Australian taxation office. We retain external accountants to settle and lodge our Quarterly Business Activity Statement and Income Tax Returns because:
(a)we understand this to be best business practice;
(b)it manages our risk associated with making an error in our BAS or income tax lodgments;
(c)providers of credit (including our suppliers) often require an external accountant to 'independently' settle or verify financial reports, as do banks offering facilities to fund plant and equipment purchases.
4.I can confirm that although JLIG retains Q&T Accounting Services to settle and lodge our Quarterly Business Activity Statements and Income Tax Returns:
(a)they prepare those lodgments on the basis of financial information prepared and provided to them by our internal accountant Ms Ren;
(b)our external accountants only perform about 15 hours of work per year for JLIG, the balance of accounting work is completed by Ms Ren;
(c)Q&T Accounting Services have no involvement in the formulation of JLIG's internal budget and accounting policies-those policies are driven by Ms Ren and implemented by our Accounts Assistant;
(d) Q&T Account ing Services also have no involvement in examining and monitoring income and expenses against annual budgets;
(e) Ms Ren prepares detailed financial reports, including forecast reports, for presentation to our director and senior managers (monthly, quarterly and annually) without the supervision of our external accountant;
(f) Ms Ren provides advice to the Board and senior management regarding JLIG's cashflow, debts and financial position;
(g) Ms Ren also provides advice to the director and senior management regarding JLIG' s taxation obligations, including GST, employee-PAYG withholding and superannuation and income tax.
5.I understand that many of the above duties do not fall within the scope of the occupation of 'Bookkeeper' (ANZSCO 551211). Additionally, many of the tasks of 'Bookkeeper' are performed by our Accounts Assistant under Ms Ren's supervision, including:
(a) entering accounts data;
(b) preparing invoices and bank deposits; and
(c) receiving funds and reconciling bank account.
29) Letter dated 9 September 2020 from Q&T Accountants regarding the services to the applicant:
We act as tax accountants for the above-named entity.
This letter is to confirm that the scope of our work is to prepare quarterly BAS,
financial statements and income tax return. We are occasionally required by the
client to prepare interim financial reports. All source data is prepared by the internal
accountant of the company, and we compile the financial statements and reports
according to ATO requirements.
The total hours of our work per annum is around 25 hours from our end.The evidence given by Ms Tian in the first hearing.
Overview
The Tribunal will approach the question of whether the person (the nominee) will be employed on a full-time basis in the position of Accountant for at least two years in the following manner. Firstly, the Tribunal will determine whether all the tasks in the job description are actually undertaken by the nominated position and of those tasks that are found to be undertaken by the nominated position it will undertake a qualitative analysis of whether those tasks correspond to the tasks of the ANZSCO 221111 Accountant.
The Tribunal is mindful that ANZSCO is not prescriptive, however, the Tribunal is also aware of the need for qualitative analysis as stated by Judge Smith in Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 at [30]. His Honour was referring to r.2.72(10)(f) of the Regulations; nonetheless the statement is applicable to the Tribunal’s decision-making regarding r.5.19(3)(d):
what is required … is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another…
The job description from the employment agreements all include the same tasks listed as below:
· serve the Company faithfully and diligently and at all times act in the best interest of our Business;
· devote the whole of your working time, attention and ability to the Company;
· use your best endeavours to protect, develop and promote the Company’s reputation and Business; and
· give effect to the directions and instructions from time to time given by the directors of the Company.
· Have the expertise and qualifications necessary to perform your duties and will perform them to a standard appropriate to a person having that expertise and qualifications. You must maintain that expertise and qualifications.
It is useful to first consider how these tasks correspond to the ANZSCO 221111 tasks for Accountant from the Australian Bureau of Statistics website shown below. The Tribunal has carefully considered all the tasks of the nominated position and cannot find any correlation between the generic nature of the tasks as listed in the employment contracts and those in the ANZSCO tasks. They include serving the company ‘faithfully and diligently’; use ‘best endeavours’ etc and are so broad as to apply to any role within the company. The Tribunal finds that these job descriptions and the tasks listed in them do not correspond to the tasks in the ANZSCO 221111 Accountant as shown below.
Tasks Include:
1) assisting in formulating budgetary and accounting policies
2) preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies
3) conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation
4) examining operating costs and organisations’ income and expenditure
5) providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements
6) providing financial and taxation advice on business structures, plans and operations
7) preparing taxation returns for individuals and organisations
8) liaising with financial institutions and brokers to establish funds management arrangements
9) introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems
10) maintaining internal control systems
11) may appraise cash flow and financial risk of capital investment projects
Since the applicant has not submitted an analysis of whether the tasks of the nominated position correspond to the tasks of the ANZSCO 221111 Accountant (General) the Tribunal will undertake this qualitative analysis based on the position description.[1] It is noted that the Submission[2] from the registered migration agent dated 1 September 2020 asserts that: ‘In relation to criteria (d): a) both Mr Zhu and Ms Ren will be employed on a full‑time basis in the position for at least 2 years’ does not give an explanation of why the nominee will be employed in the position. (Emphasis added). As such the Tribunal can give little weight to this submission.
[1] 8) Position description.
[2] 25) Submission from the registered migration agent dated 1 September 2020 stating that: ‘In relation to criteria (d): a) both Mr Zhu and Ms Ren will be employed on a full‑time basis in the position for at least 2 years.’
The Tribunal will consider the other job description that was provided, namely:
Key Responsibilities
k)Preparation of annual financial budget plan in accordance with economy
prediction, annual operating plan and financial reports of the company;
l)Making monthly, quarterly, annual financial analysis and providing financial
information for the managers of company to make decision and to assess
assets valuations;m)Being responsible for paying salary to employees and withhold and pay the
tax for employees;
n)Being responsible for company’s financial affairs, preparing financial reports
and taking participation in financial reports audit;
o)Checking all types of original voucher, making accounting voucher to ensure
the truth and legitimacy of all types of voucher;
p)Filling and making subsidiary account, general ledger;
q)Taking charge of management for computer’s keeping account, settling account and accounts book output;
r)Verifying the truth, legitimacy and completeness of relevant statements and
calculation table;
s)Coordinating the audit of annual income tax return;
t)Taking participation in the checking inventory of fixed assets, making
analysis for the useful effect of fixed assets, promote the reasonable use of
fixed assets and improve the utilization ratio of fixed assets.The Tribunal will also consider the response Ms Tian made in the hearing in response to the concern under s.359AA. She stated that because of their turnover they need an external and internal accountant. The external accountant does all the tax matters for the ATO, but the internal accountant prepares all the figures and she handles the risk management to ensure there are no mistakes in the end of year figures. There are credit application forms to submit to suppliers and documentation for an equipment loan from the bank but her main job is to prepare the financial report. She prepares the bi-monthly, annual financial reports and the latest 2019 and 2020 financial report was generated and prepared by the nominee. She is involved in the budgeting and checks the inventory of the fixed asset and makes an analysis of the useful life of the asset and promotes the useful reasonable use of the fixed asset and inventory. If they put all that work to the external accountant, they charge $350 to $380 an hour so it would cost over $100,000 per year to do all that work.
The Tribunal has observed that some companies with turnover equal or greater than the applicants do not have internal accountants but may have administrators, finance officers wage clerks or bookkeepers as examples of administrative staff so it does not accept that turnover alone is a key driver of the requirement for an internal accountant.
The Tribunal gave the applicant 14 days to submit further information.
In response the executive director submitted a statutory declaration dated 9 September 2020. There was also a letter dated 9 September 2020 from Q&T Accountants.
The Tribunal has taken all this evidence into account in the following spreadsheet which compares the actual tasks of the nominated position that align with the ANZSCO 221111 tasks of the position Accountant (General). The Tribunal has given a weighting of 1.00 to 0.00 or part thereof where the nominated positions tasks respectively align, do not align or partially align with those of the ANZSCO 221111 Accountant (General).
Task Tasks of ANZSCO 221111 Position Description Weight 1
Assisting in formulating budgetary and accounting policies 1.00 2 Preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies a) Preparation of annual financial budget plan in accordance with economy prediction, annual operating plan and financial reports of the company. j) Taking participation in the checking inventory of fixed assets, making analysis for the useful effect of fixed assets, promote the reasonable use of fixed assets and improve the utilization ratio of fixed assets 1.00 3 Conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation b) Making monthly, quarterly, annual financial analysis and providing financial information for the managers of the company to make decisions and to assess assets valuations; d) Being responsible for the company’s financial affairs, preparing financial reports and taking participation in financial reports audit i) Coordinating the audit of annual income tax return; 0.75 4 Examining operating costs and organisations’ income and expenditure f) Filling and making subsidiary account, general ledger. g) Taking charge of management for computer’s keeping account, settling account and accounts book output; 1.00 5 Providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements h) Verifying the truth, legitimacy and completeness of relevant statements and calculation table; 0.00 6 Providing financial and taxation advice on business structures, plans and operations 0.50 7 Preparing taxation returns for individuals and organisations 0.00 8 Liaising with financial institutions and brokers to establish funds management arrangements 0.00 9 Introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems 0.50 10 Maintaining internal control systems Checking all types of original voucher, making accounting voucher to ensure the truth and legitimacy of all types of voucher 0.25 11 May appraise cash flow and financial risk of capital investment projects Tasks that do not align c) Being responsible for paying salary to employees and withhold and pay the tax for employees. 10 Tasks Number of tasks that align with ANZSCO 5.00 % of tasks that align with the ANZSCO 50% Task 1 of the ANZSCO
Task 1 of the ANZSCO is ‘assisting in formulating budgetary and accounting policies’ and while there does not appear to be any task in the position description of the nominated position that aligns with this task it is noted that the registered migration agent’s letter of 10 September 2020 states work performed by the nominee includes b.(i) ‘formulating budget and accounting policies’. It is noted that the statutory declaration of the Executive Officer dated 9 September 2020 states ‘formulation of JLIG’s internal budget and accounting policies …are driven by (the nominee)’.
The Tribunal has concerns over the credibility of these statements because the applicant lodged this application in June 2017 and had three-and-a-half years to update their position description. They did not raise these matters in the hearing. Generally, the Tribunal would not include tasks that are not in the position description however to give the applicant the benefit of the doubt it will accept that this task is fully undertaken by the nominated position and give a weighting of 1.00 to this task.
Task 2 of the ANZSCO
Task 2 of the ANZSCO is ‘preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies.’ The Tribunal considers that the nominated position’s tasks that align with this are ‘a) Preparation of annual financial budget plan in accordance with economy’ and ‘j) Taking participation in the checking inventory of fixed assets, making analysis for the useful effect of fixed assets, promote the reasonable use of fixed assets and improve the utilization ratio of fixed assets’ and gives a weighting of 1.00.
Task 3 of the ANZSCO
Task 3 of the ANZSCO is ‘conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation’. This comprises four sub-tasks namely sub-task 1 being ‘conducting financial investigations; sub-task 2 is ‘preparing reports’; sub-task 3 is ‘undertaking audits’ and sub-task 4 is ‘advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation’.
The Tribunal has carefully examined the position description but can find scant reference to the nominated position conducting investigations and as such considers that sub-task 1 is not undertaken by the nominated position.
The Tribunal considers that the nominated position’s tasks that align with sub-task 2 and 3 are ‘b) Making monthly, quarterly, annual financial analysis and providing financial information for the managers of company to make decision and to assess assets valuations’; ‘d) Being responsible for company’s financial affairs, preparing financial reports and taking participation in financial reports audit’ and ‘i) Coordinating the audit of annual income tax return’. The Tribunal considers these sub-tasks fully undertaken by the nominated position.
It is noted that the Executive Officer’s statutory declaration of 9 September 2020 states that the nominee provides advice to the director and senior management regarding JLIG’s taxation obligations and considers that this partly meets sub-task 4 namely advice on taxation but there is scant reference to advice on the purchase or sale of businesses, mergers, capital financing, suspected fraud or insolvency. As such the Tribunal considers that sub-task 4 is only half met however again to give the applicant the benefit of the doubt the Tribunal will consider this task is fully undertaken by the nominated position.
Since three of the four sub-tasks in ANZSCO task 3 are undertaken by the nominated position the Tribunal gives it a weighting of 0.75.
Task 4 of the ANZSCO
Task 4 of the ANZSCO is ‘examining operating costs and organisation’s income and expenditure.’
The Tribunal considers that the nominated position’s tasks that align with this are ‘f) Filling and making subsidiary account, general ledger and ‘g) Taking charge of management for computer’s keeping account, settling account and accounts book output.’ Since all of the ANZSCO task 4 are undertaken by the nominated position it is given a weighting of 1.00.
Task 5 of the ANZSCO
Task 5 of the ANZSCO is ‘providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements.’ This is two sub-tasks namely ‘providing assurance about the accuracy of information contained in financial reports’ and ensuring ‘financial reports compliance with statutory requirements.’
The only task from the position description that appears to align with this ANZSCO task is ‘h) Verifying the truth, legitimacy and completeness of relevant statements and calculation table.’ It is noted that the Executive Officer’s advice in the hearing was that the nominee handles the risk management to ensure there are no mistakes in the end of year figures.
However, in the statutory declaration by the Executive Officer dated 9 September 2020 it states that the applicant retains an external accountant to handle lodgements with the ATO and to settle and lodge Quarterly Business Activity Statements and income tax returns because it is best business practice; manages their risk associated with making an error and providers of credit (including their suppliers) often require an external accountant to ‘independently’ settle or verify financial reports. It is noted that the Compilation Report attached to the financial statements prepared by Q&T Accountants states that the Directors are solely responsible for the information contained in the special purpose financial statements however while it is acknowledged that the nominated position verifies the accuracy of the information going into the taxation lodgements it is the external accountants that are ‘providing assurance’ about the accuracy of the information. (Emphasis added). The Executive Officer said in her statutory declaration at 3(c) it is the external accountants that verify financial reports as this is required by credit providers and banks. The Tribunal considers that it is the external accountants Q&T Accountants that provide the assurance to creditors and others about the accuracy of information in the financial reports and therefore the first sub-task is not undertaken by the nominated position.
Put another way, the Executive Officer is stating that an internal accountant, the nominated position, would not provide assurance about the accuracy of information but rather an external CPA accountant is required to provide this assurance. As such the Tribunal considers that the first sub-task of task 5 of the ANZSCO Is not undertaken by the nominated position.
In the Compilation Report Q&T accountants state the accounting policies have been set by the directors however they have complied with APES 315 and APES 110 in preparing the financial statements. The CPA professional accounting body states that APES 315 Compilation of Financial Information sets out mandatory requirements and guidance for members in public practice who undertake compilation engagements while APES is the Ethical Code. The accountant’s letter of 9 September 2020 states that they comply with ATO requirements. Since it is Q&T Accountant’s role to ensure financial reports comply with statutory requirements which are encompassed by CPA and ATO standards the Tribunal considers that the second sub-task is not undertaken by the nominated position. As such the nominated position does not undertake the two sub-tasks in ANZSCO task 5 and the Tribunal gives it a weighting of 0.00.
Task 6 of the ANZSCO
Task 6 of the ANZSCO is ‘providing financial and taxation advice on business structures, plans and operations.’
The Tribunal cannot find any task in the Position Description that aligns with ANZSCO task 6. It is noted that in the Executive Officer’s statutory declaration of 9 September 2020 she states that the nominee provides advice to the Board and senior management regarding cashflow, debts, financial position and taxation obligations. The Tribunal has two concerns over the Executive Officer’s statement firstly the ANZSCO task requires advice to be given on business structures, plans and operations rather than just in terms of financial and taxation advice for the senior management to then interpret. The ANZSCO task implies that the position must provide high level advice on business structures, future plans and operations through the prism of taxation and financial implications for the business. The Executive Officer’s statement does not convey this meaning and implies that the nominated position merely provides financial updates and advice on taxation obligations. The second concern is that the Executive Officer’s statements were only made following the Tribunal raising the concern in the hearing that the position’s tasks did not appear to correspond to the ANZSCO tasks.
The Tribunal does not accept that the nominated position undertakes ANZSCO task 6 because it was not in the position description; it is a higher level task involving business structures, plans and operations rather than merely providing advice and it was only mentioned by the Executive Officer after the Tribunal raised the concern in the hearing. However, while the Tribunal doubts that this task is undertaken by the nominated position it notes that the applicant does give some level of taxation advice and will give the applicant the benefit of the doubt and consider it partly undertaken with a weighting of 0.50.
Task 7 of the ANZSCO
Task 7 of the ANZSCO is ‘preparing taxation returns for individuals and organisations.’
The financial statements submitted show that Q&T Accountants prepare and lodge all the taxation returns for the applicant and this is confirmed in the Executive Officer’s statutory declaration which states they settle and lodge the BAS and tax returns. There is no mention in the position description of the nominated position undertaking these tasks. The letter from the accountant dated 9 September 2020 states that they are the tax accountants and prepare the quarterly BAS, financial statements and income tax returns according to ATO requirements and they spend 25 hours per annum on this work. The Tribunal finds that ANZSCO task 7 is undertaken by Q&T Accountants and not the nominated position and gives it a weighting of 0.00.
Task 8 of the ANZSCO
Task 8 of the ANZSCO is ‘liaising with financial institutions and brokers to establish funds management arrangements.’
The Tribunal cannot find a task of the nominated position that aligns with this ANZSCO task and it is noted that when the Tribunal became concerned about financial viability regarding the statement in the Financial Statements made by Q&T Accountants namely ‘the directors have received the assurance of continuing financial support’ that it was the director Mr Wang who responded in a statutory declaration regarding the source of funds management for the business. The Tribunal finds that the nominated position does not liaise with financial institutions and brokers to establish funds management arrangements as this task is undertaken at a senior level in the company by the directors and the task is not listed in the position description. It is noted that the Executive Officer referred to the nominee preparing documentation for an equipment loan from the bank however completing forms and supporting evidence is not the same as liaising with financial institutions and the Tribunal prefers the statutory declaration of the director which shows he has responsibility for these matters. As such a weighting of 0.00 is given.
Task 9 of the ANZSCO
Task 9 of the ANZSCO is ‘introducing and maintaining accounting systems and advising on the selection and application of computer-based accounting systems.’
This task is two sub-tasks ‘introducing and maintaining accounting systems’ and ‘advising on the selection and application of computer-based accounting systems.’
The Tribunal cannot find a task in the position description of the nominated position that aligns with the first sub-task of the ANZSCO task. It is noted that the registered migration agent in his letter of 10 September 2020 stated that the nominated position is ‘supervising and maintaining the applicant’s accounting systems’. The Tribunal has some concerns over the credibility of this statement similar to the concerns over ANZSCO task 1 however it will give the applicant the benefit of the doubt and find that the nominated position undertakes the first sub-task of ANZSCO task 9.
The Tribunal cannot find a task in the position description of the nominated position that aligns with the second ANZSCO task and can find scant evidence in the letters, statements or hearing evidence that supports the nominated position advising on the selection and application of computer based accounting systems. The Tribunal considers that this second sub-task is not undertaken by the nominated position. As such the Tribunal finds that one of the two sub-tasks of ANZSCO task 9 is undertaken by the nominated position and gives a weighting of 0.50.
Task 10 of the ANZSCO
Task 10 of the ANZSCO is ‘maintaining internal control systems.’ The task that appears to partially align with this task is ‘e) Checking all types of original voucher, making accounting voucher to ensure the truth and legitimacy of all types of voucher’ however it is unclear what this task of the nominated position actually entails.
This is a broad and high level ANZSCO task and the Tribunal would expect some detail about how these internal controls were to be maintained by the nominated position such as separation of duties to ensure financial integrity; setting of permission levels via log-in credentials to safeguard data; designating specific individuals for transaction authorisations; asset audits (there is a mention of audits ); standardising financial documents into templates for consistent and streamlined auditing; a system of data back-up and an information security policy. However it is not the Tribunal’s role to determine what internal control systems the applicant may deem necessary but rather to point out that of the typical internal controls that might be expected in a business, scant are mentioned in the position description or were referred to in the hearing. It is noted that there is a voucher system, audit of the income tax returns and inventory control, but the applicant has not provided details of how these contribute to the internal control systems and as such the Tribunal can place little weight on them.
The fact that only a small number of the typical tasks associated with internal control systems are mentioned in the position description or undertaken by the nominated position leads the Tribunal to find that this task is either not undertaken at all or mostly undertaken at a more senior level in the company and there are a number of senior personnel such as the Directors; Executive Officer; Office Manager and Management Consultant who may undertake some or all of these tasks. However, the Tribunal notes that a small number of the nominated positions tasks such as the vouchers, audits and inventory could be considered as part of internal control systems and gives it a weighting of 0.25.
Task 11 of the ANZSCO
Task 11 of the ANZSCO is ‘may appraise cash flow and financial risk of capital investment projects.’ There is no task in the position description that aligns with this ANZSCO task however the word ‘may’ in the task implies that not all Accountants are expected to undertake this task and as such the Tribunal will not include it in the analysis.
Tasks that do not align with the ANZSCO
Tasks that do not align with the ANZSCO are ‘c) Being responsible for paying salary to employees and withhold and pay the tax for employees.’ It is noted that the Executive Officer states that this task is undertaken by the Accounts Assistant.
Overarching responsibility
The remaining task to consider is the overarching responsibility of the ANZSCO Accountant, namely ‘ACCOUNTANTS provide services relating to financial reporting, taxation, auditing, insolvency, accounting information systems, budgeting, cost management, planning and decision-making by organisations and individuals; and provide advice on associated compliance and performance requirements to ensure statutory and strategic governance.’
The Tribunal accepts this is the overall responsibility of the ANZSCO position but believes because it is listed in the ANZSCO it must be considered. Implicit in this overarching responsibility is that the position’s tasks correspond to the eleven now ten tasks, with the removal of task 11, listed in the ANZSCO. It would be unreasonable to find that a significant proportion of the nominated position’s tasks, particularly the higher level tasks, do not correspond to the ANZSCO but that the position fulfils the overarching responsibility of an Accountant who would ‘provide services relating to financial reporting, taxation, auditing, insolvency, accounting information systems, budgeting, cost management, planning and decision-making by organisations and individuals; and provide advice on associated compliance and performance requirements to ensure statutory and strategic governance.’
The Tribunal acknowledges that the applicant has listed the overall responsibility of the nominated position as ‘Accountant in our company is a hands on position, responsible for the efficient running of the organisation’s accounts including everyday duties such as general entries, balance sheets, ledgers, reporting and advice management on tax issues, budgets and forecast and planning.’
The Tribunal found that the higher-level tasks which carry more responsibility and would be associated with managerial responsibility, namely: ‘conducting investigations; providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements; providing financial and taxation advice on business structures, plans and operations; preparing taxation returns for individuals and organisations; liaising with financial institutions and brokers to establish funds management arrangements’ are not aligned with the nominated position and tasks ‘introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems’ and ‘maintaining internal control systems’ are only partially aligned with the ANZSCO tasks. The Tribunal has arrived at this finding through a careful qualitative analysis of each task.
The Tribunal therefore finds that the nominated position does not have overarching responsibility for and does not ‘provide services relating to financial reporting, taxation, auditing, insolvency, accounting information systems, budgeting, cost management, planning and decision-making by organisations and individuals; and provide advice on associated compliance and performance requirements to ensure statutory and strategic governance.’ It is noted from the Tribunal’s analysis that the nominated position does undertake 50% of the ANZSCO tasks. As such, the Tribunal finds it is reasonable to give this overall responsibility a weighting of 0.50.
The Tribunal will now return to the tasks of the position that correspond to the tasks of an ANZSCO 221111 Accountant. The table below shows the weighting given to each task by the Tribunal with the overarching responsibility included but Task 11 deleted.
Tasks of ANZSCO Accountant Weighting Overarching responsibility 0.50 Task 1 1.00 Task 2 1.00 Task 3 0.75 Task 4 1.00 Task 5 0.00 Task 6 0.50 Task 7 0.00 Task 8 0.00 Task 9 0.50 Task 10 0.25 Task 11 (not considered) 11 Tasks in Total 5.50 % of tasks that correspond to the ANZSCO 50%
The Tribunal finds that of the eleven tasks to be performed in the nominated position, only 5.50 or 50% of the tasks correspond with the eleven tasks including the overarching responsibility, of the ANZSCO 221111 Accountant.
The Oxford Dictionary online provides the following definition of ‘correspond’: ‘Have a close similarity; match or agree almost exactly.’ A 50% alignment would not reasonably be said to be a ‘close similarity’ or to ‘match or agree almost exactly’.
The Tribunal has exercised considerable discretion in accepting tasks are undertaken by the nominated position that were never included in the original employment contracts signed by both the nominee and the applicant; not included in the position description and only posited by the applicant as tasks undertaken by the nominated position, after the Tribunal in the first hearing brought this concern to the applicant’s attention.
Therefore, the tasks to be performed in the nominated position do not correspond to the tasks of the occupation ANZSCO 221111 Accountant, specified by the Minister in writing.
The person referred to in r.5.19(3)(c)(i) is the nominee. It is open to the Tribunal to find that the nominee was not employed in the position of ANZSCO 221111 Accountant (General) in respect of which the person (the nominee) holds the Subclass 457 visa for a total period of at least two years (not including any period of unpaid leave) for the same reasons in [33] to [85] and therefore that the applicant does not meet r.5.19(3)(c)(i)(A)(II) and does not satisfy r.5.19(3)(c).
However, the Tribunal considers that r.5.19(3)(d)(i) is more germane to a decision. As such, for a person to whom (c)(i) applies (the nominee), the person will not be employed on a full-time basis in the position of Accountant (General) for at least two years because the Tribunal has found the nominated position is not that of an ANZSCO 221111 Accountant (General).
As such r.5.19(3)(d)(i) is not met.
Given the above findings, the requirement in r.5.19(3)(d) is not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in the Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). 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.
De-Anne Kelly
MemberATTACHMENT - 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.
Temporary Residence Transition nomination
(3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii) identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(b)the nominator:
(i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii) is actively and lawfully operating a business in Australia; and
(iii) did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i) both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii) all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i) the person will be employed on a full-time basis in the position for at least 2 years; and
(ii) the terms and conditions of the person’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) the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii) it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)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
(h)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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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