MPC World Group Pty Ltd ATF MPC World Group Trust (Migration)

[2024] AATA 1438

MPC World Group Pty Ltd ATF MPC World Group Trust (Migration) [2024] AATA 1438 (22 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MPC World Group Pty Ltd ATF MPC World Group Trust

REPRESENTATIVE:  Mrs Maryanne Issa (MARN: 1577048)

CASE NUMBER:  2114086

HOME AFFAIRS REFERENCE(S):          BCC2021/1633680

MEMBER:Alison Mercer

DATE:22 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 22 May 2024 at 5:25pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Accountant (General) – genuine position – size and scope of the business – group of 8 companies – use of an external accounting firm – expansion in the applicant’s operations – salary increase – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 September 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, MPC World Group Pty Ltd as trustee for MPC World Group Trust (trading as Aqua Rush), applied for approval of its nominated occupation of Accountant (General) on 23 August 2021. A nomination of an occupation for a subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a subclass 482 visa in the Medium-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(a), which required (in summary) that the position associated with the nominated occupation was genuine. The delegate was not satisfied that the nominated position would involve all, or even many, of the duties listed for the occupation of Accountant (General) in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary. The delegate noted that the applicant traded as Aqua Rush, and its business operations involved the manufacture and distribution of labelled water bottles. Given this, the delegate was not satisfied that the business genuinely needed an in-house Accountant undertaking the full range of duties listed in ANZSCO.

4. The Tribunal received a review application on 12 October 2021. It was lodged on behalf of the applicant by its director, Mr Roshan Chelvaratnam, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Chelvaratnam appointed a registered migration agent, Ms Noeline Smart, as the applicant’s representative and authorised recipient for correspondence. Subsequently, Mr Chelvaratnam appointed another migration agent, Ms Maryanne Issa, to these roles.

5. On 25 January 2024, the Tribunal wrote to Mr Chelvaratnam via the agent to invite him, pursuant to s.359(2) of the Act, to provide updated and current information demonstrating that the applicant met all of the relevant criteria in r.2.72 and s.140GBA (not merely the criterion that the delegate found was not met).

6. On 8 February 2024, the Tribunal received the following material in response to its letter:

   ·details of the applicant’s registration with the Australian Securities and Investments Commission (ASIC) and Australian Business Number (ABN) websites;

   ·copy of Department approval of the applicant as a Standard Business Sponsor, valid until 2 August 2026;

   ·letter from the applicant’s external Accountant, dated 6 February 2024;

   ·applicant’s financial statements for the financial year 2021/2022;

   ·employment contract for the nominee;

   ·organisational chart for the applicant;

   ·information about the relevant annual market salary rate (AMSR) for this case;

   ·copy of the nominee’s English test results and his curriculum vitae; and

   ·submissions from the agent.

7. In his letter of 6 February 2024, the external Accountant, Mr Roger Fredrick of Trident Financial Group Pty Ltd, states that:

   …

   I am a qualified accountant within the meaning of the Corporations Act and write this letter to form part of an application to the Department of Home Affairs by Plavinnage Senani Muthukumarana (“Sam”) as Group Accountant to business entities controlled by Roshan Chelvaratnam (“Roshan”) as Managing Director.

   In writing this letter, I wish to declare, to the best of my knowledge, I have retained my independence and have complied with my professional obligations under the Chartered Accountants Australia New Zealand and Australian Professional and Ethical Standards Board.

   I have been acting as external tax and business advisor for Roshan since July 2016. We act for the following entities as tax agent and ASIC agent under Roshan’s group of entities (“Roshan Group”):

   • MPC World Group Trust • MPC Global Innovations Pty Ltd

   • Edited Skin Care Pty Ltd • Skin Chemist Lab Holdings Pty Ltd

   • Skin Chemist Lab Management Pty Ltd

   • Skin Chemist Lab Pty Ltd • Euclove Clean Unit Trust

   • Iluma Solutions Discretionary Trust

   • Caravan and Camping Aus Pty Ltd

   As Roshan Group continued to increase in complexity, we were unable to support the growing accounting and commercial requirements and made recommendation to Roshan in 2019 to hire an internal accountant. Office managers and various staff were completing the book and record keeping work under our supervision for the business at a basic level and we were remotely supporting the business’ needs. As the revenues, structure, risks and commercial needs of the business grew, we were unable to adequately be involved in day to day activities. Our scope of work for Roshan Group is external business advisor, tax compliance work through the preparation and lodgment of financial statements and tax returns, business activity statements and tax advisory services.

   Roshan recruited Sam as an internal accountant, and we have maintained a working relationship with her since January 2020. Sam oversees the accounting, financial, cashflow and commercial needs of the business. The bookkeeping day to day is still performed by the office managers and team members and our accountants correspond with them as required to assist them. Sam’s role is similar to that of a financial controller, and we have observed her involvement in working capital management, budgeting and forecasting, implementing new accounting systems (inventory management – Unleashed), management reporting, preparation of management reports for tenders, cost accounting and cost management and advising Roshan on the ongoing performance of the business.

   We would be unable to perform our duties if we were not able to liaise with a suitably qualified individual similar to Sam to complete our ongoing engagement. I have included an overview of the historical performance of Roshan group below.

   Overview of entity performance

Entity	Business Activities	2023	%	2024(F)	%
Manufacturing Cosmetics businesses	3,404,608	6%	2,378,191	5%
MPC World Group Trust	Manufacturing and contract bottling for water and cosmetics	2,913,710	1,534,742
MPC Global Innovations Pty Ltd	R & D entity for cosmetics	0	0
Edited Skin Care Pty Ltd	Cosmetics	1,447	586
Skin Chemist Lab Holdings Pty Ltd	Holding entity	0	0
Skin Chemist Lab Management Pty Ltd	Management entity	0	0
Skin Chemist Lab Pty Ltd	59,658	73,354
Euclove Clean Unit Trust	Manufacturing – environmentally safe cleaning products	429,792	768,509
Wholesale Distribution Businesses	54,465,040	94%	46,160,293	95%
Illuma Solutions Discretionary Trust	Wholesale caravan, camping and trailer parts	1,629,428	0
Caravan and Camping Aus Pty Ltd	Wholesale caravan, camping and trailer parts	9,600,612	45,160,293
Finch Australia Pty Ltd***	Wholesale caravan, camping and trailer parts	43,235,000	0
TOTAL	57,869,647	47,538,484

***Proforma revenue used for FY23 as this acquisition closed on 7 July 2023

…

1. In her submissions, the agent made the following points:

   …

   Background

   1. MPC World Group Pty Ltd, acting as trustee for MPC World Group Trust, lodged an appeal presently under review by the Administrative Appeals Tribunal (the Tribunal). In compliance with the Tribunal's directive, updated and pertinent information fulfilling specific criteria has been requested. The requisite documentation is to be duly submitted to the Tribunal by 8 February 2024.

   2. The enclosed document offers a comprehensive overview of pertinent information and responds to the issues identified by the original decision-maker.

   Delegate’s Decision

   3. A summary of the delegate’s decision is expressed as follows:

   • The decision revolves around the refusal of MPC World Group Pty Ltd’s application for the approval of a nomination for a Temporary Skill Shortage (subclass 482) visa. The refusal is based on the inability to satisfy the criterion outlined in paragraph 2.72(10)(a) of the Migration Regulations 1994 (Cth), which requires the position associated with the nominated occupation to be genuine.

   • Upon evaluation, it was determined that the nominated position for an Accountant (General) did not convincingly meet the genuine position criterion. Despite some tasks aligning with those expected of an Accountant (General) as per the Australian and New Zealand Standard Classification of Occupations (ANZSCO), the overall assessment considered the role's duties within the context of the business's scale, activities, and staffing structure. The assessment highlighted that high level accounting tasks would be infrequent, suggesting that the role does not necessitate a dedicated in-house accountant as described by ANZSCO for businesses with significant financial operations.

   • Further analysis of the business's financial reports and the nature of its operation, which involves manufacturing and distributing customlabelled bottled water, indicated that the accounting functions presented did not align with the extensive and specialised responsibilities of an Accountant (General). The organisational structure and financial data suggested that the nominee would likely undertake tasks more suited to a less specialised role, potentially overlapping with administrative or bookkeeping functions.

   • Given these considerations, the decision concluded that the nominated position does not fulfill the requirements of being genuinely that of an Accountant (General) within the context of the business's operations and financial needs. Consequently, the application for the nomination under the Temporary Skill Shortage (subclass 482) visa program was refused as it did not meet the prescribed criteria set out in regulation 2.72, specifically subregulation 2.72(10).

   The Updated Material

   4. Organisational Structure.

   The MPC World Group Pty Ltd’s organisational structure document makes plain the following:

   • Introduction to MPC World Group Pty Ltd. The document serves as an essential guide to the complex structure of MPC World Group Pty Ltd, offering insight into its diversified operations across various entities. It meticulously outlines the company's hierarchy, revealing both the breadth and depth of its corporate architecture.

   • Detailed Departmental Overview. Each department within the organisation is carefully catalogued, indicating a well-thought-out operational strategy that leverages specialised teams for different facets of the business. This segmentation underscores the company's commitment to efficiency and effectiveness in its operations.

   • Leadership and Management Focus. The spotlight on key leadership positions across the group highlights the strategic importance of strong governance and leadership in driving the company's vision forward. It underscores the role of management in steering the various entities towards common goals.

   • Workforce Composition and Diversity. By detailing the employment status and citizenship of its workforce, the document reflects the company's adherence to regulatory compliance and its commitment to fostering a diverse and inclusive work environment.

   • Operational Roles and Responsibilities. The enumeration of roles within production, laboratory management, and administrative functions illustrates the group's operational complexity and the specialised skills required to maintain its competitive edge.

   • Strategic Recruitment and Organisational Development. The identification of vacant positions signals the group's forward-looking approach to organisational development, highlighting areas of growth and the ongoing need for talent acquisition.

   • Intra-company Collaboration. The detailed listing of personnel and departments facilitates intra-company communication, essential for collaboration and the smooth execution of cross-functional projects.

   • Comprehensive Corporate Directory. As a corporate directory, the document acts as a vital internal resource, enabling employees to understand the organisational structure and connect with colleagues across different departments.

   • Facilitation of Stakeholder Engagement. For external stakeholders, the document offers a transparent view of the company's structure, aiding in the understanding of its business operations and governance.

   • Conclusion on Organizational Efficiency. Ultimately, the document not only serves as a snapshot of the current organisational setup but also as a testament to the company's structured approach to business management, emphasising the importance of clear roles, responsibilities, and a cohesive operational framework.

   5. Expert Correspondence of Roger Fredrick (6 February 2024).

   Roger Fredrick, as a Chartered Accountant and external advisor since July 2016 to Roshan Chelvaratnam's businesses, supports Palavinnage Senani Muthukumarana (Sam's) application for a Group Accountant role. He emphasises the increasing complexity of Roshan's business entities, leading to the need for an internal accountant like Sam.

   6. Since her hire in January 2020, Sam has overseen crucial financial operations, enhancing the group's accounting and financial systems. Fredrick attests to Sam's significant role in maintaining the business's financial health and his reliance on her expertise for fulfilling his advisory responsibilities.

   7. Contract Template. The job description for the Group Financial Accountant position held by Sam focuses on a comprehensive range of responsibilities. These include preparing monthly financials, cash flow statements, and forecasts; supporting business strategy; monitoring operational efficiency; managing inventory and intercompany transactions; ensuring tax compliance; supervising junior staff; and maintaining credit control policies. Qualifications require an accounting or finance degree, experience in a similar role, proficiency in MS Excel and accounting software, along with excellent mathematical and time management skills. The role, based in Dandenong South, is full-time, requires travel, and offers a salary of $72,904 plus superannuation.

   8. Overview of Entity Performance. In the correspondence from Mr Roger Fredrick, there is a table titled ‘Overview of entity performance’. A fair summary of that table is explained as follows. The table shows financial data for various business entities. The table includes data for two fiscal years, 2023 and the forecast for 2024, alongside the percentage changes for each year.

   9. In the first section, labelled "Manufacturing / Cosmetics," there are five entities listed. The total revenue for this sector in 2023 was 3,304,608 with a 6% share, which is forecasted to decrease to 2,378,191 with a 5% share in 2024. This suggests a projected decline in revenue and percentage share for the manufacturing and cosmetics sector.

   10.Among these entities, "MPC World Group Trust" has the highest revenue, but it is forecasted to see a significant decrease from 2,913,710 in 2023 to 1,534,742 in 2024. "Skin Chemist Lab Pty Ltd" is the only entity in this category projected to increase revenue, from 59,658 to 74,354.

   11.The second section, "Wholesale Distribution Businesses," comprises three entities, with a drastic change projected between the two years. In 2023, the total revenue was 54,465,040, making up 94% of the share, and it is forecasted to slightly increase to 45,160,293, maintaining a 95% share in 2024.

   12.Notably, "Iluma Solutions Discretionary Trust" is projected to go from 1,629,428 in revenue to zero, indicating a possible cessation of operations or a significant shift in business focus. Conversely, "Caravan and Camping Aus Pty Ltd" is forecasted to see an immense increase from 9,600,612 to 45,160,293, possibly indicating a strategic success or expansion.

   13.The third section of the table is not visible; therefore, no analysis can be provided on that part. The "TOTAL" row at the bottom of the table consolidates the revenue and percentage share of all entities listed. The total revenue for 2023 is 57,869,647 with a 100% share, which is forecasted to decrease to 47,538,484 with the same share in 2024. This implies an overall decline in revenue for the entities listed in the table.

   14.The percentages shown in the table do not necessarily reflect growth rates but rather the share of total revenue attributed to each entity. For instance, even though "Wholesale Distribution Businesses" is forecasted to have a smaller total revenue in 2024 than in 2023, its share percentage increases, likely due to an even more significant decrease in revenue for the "Manufacturing / Cosmetics" sector.

   15.The double asterisks next to "Finch Australia Pty Ltd" suggest proforma revenue used for FY23 as this acquisition closed on 7 July 2023.

   16.Overall, the table provides a snapshot of past and projected performance for various business entities, highlighting significant changes in revenue and implying strategic shifts or market changes affecting these businesses between 2023 and 2024. The decline in total revenue suggests that the businesses may be facing challenges or transitions that could impact their operations in the forecasted year.

   17.Necessity for Accountancy Role. Considering the financial data presented, the necessity for the business to employ a full-time accountant becomes evident. Firstly, the diverse range of business activities and the complexity of managing multiple entities such as those in manufacturing, cosmetics, and wholesale distribution, each with its own set of financial nuances, underscore the importance of having a dedicated professional to ensure meticulous financial oversight.

   18.A full-time accountant can provide the specialised attention required to manage the finances of each entity effectively, ensuring that revenue streams are accurately tracked, and financial risks are minimised.

   19.Secondly, the projected decline in revenue across the entities, especially in the Manufacturing/Cosmetics sector, indicates a volatile market environment. An accountant can perform detailed financial analysis to pinpoint underlying causes and develop strategies to mitigate losses. By providing regular financial health reports, an accountant can assist in steering the business through turbulent economic times, identifying cost-saving measures, and suggesting actionable steps to improve financial performance.

   20.Thirdly, the significant changes forecasted for the Wholesale Distribution Businesses, such as the anticipated cessation of operations for one entity and the substantial revenue increase for another, call for a full-time accountant's expertise in strategic planning and financial forecasting.

   21.An accountant can help navigate the complexities of scaling operations up or down, managing cash flows, and ensuring that the business does not overextend its financial resources during periods of transition.

   22.Fourthly, the existence of holding and management entities within the corporate structure adds layers of financial transactions that need to be reconciled and accurately reported. A full-time accountant can manage inter-company transactions, maintain the integrity of financial records, and ensure compliance with tax laws and regulations. This is crucial in avoiding costly penalties and in facilitating smooth operations across the business's various entities.

   23.Lastly, the role of a full-time accountant extends beyond mere number crunching; it encompasses the strategic role of advising on business decisions. With comprehensive knowledge of the company's financial standings, an accountant can provide insights that drive long-term strategic decisions, support investment opportunities, and contribute to the overall growth and sustainability of the business.

   24.In sum, the hiring of a full-time accountant is not just a necessity but a strategic investment for the business. The accountant's expertise will be pivotal in navigating the financial challenges presented, optimising performance, and setting a robust foundation for the future financial health of the enterprise.

   25.Senani Muthukumarana's Resume. Senani Muthukumarana's resume presents a comprehensive account of her extensive experience in accounting and financial management spanning over a decade. Her career journey showcases her roles in diverse industries, starting from an Accounts Assistant to a General Accountant at MPC World Group Pty Ltd.

   26.Muthukumarana's skills are detailed, emphasising budget forecasting, financial analysis, and proficiency in accounting software such as QuickBooks, Xero, and MYOB. Her work history demonstrates her capability to manage monthly financials, cash flow statements, and support business strategy through financial insights.

   27.At MPC World Group, she played a crucial role in financial reporting, tax compliance, and operational efficiency improvements. Prior roles at Colombo Impex Pty Ltd and Colombo Money Transfer Services highlight her adeptness in journal entries, sales and GST reconciliation, and bank reconciliations, showcasing her versatility and ability to handle end-to-end finance administrative tasks. Her tenure at Good Hope Property Developers Pvt Ltd in Sri Lanka further solidifies her expertise in managing business systems, banking activities, and payroll.

   28.Her academic qualifications, including a Master of Professional Accounting from Southern Cross University Melbourne and an ACCA certification, underpin her practical experience with a solid foundation in accounting principles. Additional certifications and diplomas in business management, English for business communication, and computer science illustrate a commitment to continuous learning and adaptability.

   29.Muthukumarana's resume not only highlights her financial management capabilities but also her dedication to professional development and excellence in the field of accounting. Her career progression, from handling basic accounting tasks to assuming a pivotal role in financial strategy and analysis, reflects her growth and readiness to tackle complex financial challenges in dynamic business environments. Consideration Limitations of Delegate’s Decision

   30.Prior to examining the more recent evidence presented in support of this appeal, it is essential to highlight the deficiencies and limitations inherent in the delegate's reasoning dated 22 September 2021.

   31.The delegate's reasoning in refusing the subclass 482 visa nomination application contains several defects and weaknesses, which can be categorised under legal, logical, and factual bases.

   32.Legal and Procedural Defects:

   • Interpretation of "Genuine Position". The Migration Regulations 1994 (Cth) require the position to be genuine but do not provide a strict definition of what constitutes "genuineness." The delegate's interpretation appears to be overly narrow and could potentially exclude legitimate business needs that don't fit a traditional or expected model of employing an Accountant (General).

   • Application of ANZSCO Definitions. While the Australian and New Zealand Standard Classification of Occupations (ANZSCO) provides a guideline for job roles, rigidly applying these definitions without considering the flexibility and evolution of roles within different business contexts might not be appropriate. The delegate's strict adherence to ANZSCO descriptions without allowance for variation can be seen as a defect in understanding modern business practices.

   33.Logical Defects:

   • Assumption About Business Needs Based on Size and Turnover. The delegate assumes that the business's size and financial turnover do not justify the need for an in-house Accountant (General). This assumption overlooks the possibility that the impugned businesses have complex financial management needs that are not directly correlated with size or turnover.

   • Equating Accounting Costs with Need for Accountant. The analysis of the business's accountancy costs to challenge the need for an inhouse accountant may not be logically sound. The cost incurred for external accountancy services does not necessarily reflect the full scope of accounting needs or strategic reasons for nominating an in-house accountant.

   34.Factual and Evidential Weaknesses:

   • Overlooked Business Context. The delegate failed to adequately consider the applicant's business context and future plans which necessitate an in-house accountant. Businesses might have strategic reasons, such as growth plans or complex regulatory requirements, for nominating a position that appears to be disproportionate to their current financial turnover (such as the current business).

   • Misinterpretation of Role Responsibilities. By focusing on the presence of certain tasks that might seem routine or administrative, the delegate has overlooked the strategic importance of these tasks within the specific business context. The decision seems to assume that because some tasks can be performed by a less skilled worker, the role does not require a qualified Accountant (General), which neglects the nuanced and advisory aspects of the accountant's role in business strategy and compliance.

   • Underestimation of Specialised Tasks. The reasoning suggests that tasks requiring specialised knowledge are occasional rather than integral to the role. This underestimation overlooks the critical need for ongoing specialised expertise in navigating complex financial, tax, and compliance landscapes, even in a business not primarily focused on accounting services.

   35.The delegate's decision reflects a stringent and possibly inflexible application of regulations and definitions, failing to accommodate the diversity of business needs and practices. The reasoning exhibits logical flaws, particularly in assumptions about business needs and the interpretation of what constitutes a "genuine" position.

   36.These weaknesses undermine the fairness and effectiveness of the visa nomination assessment process, suggesting a need for a more nuanced and flexible approach that considers the evolving nature of business roles and the specific contexts within which they operate.

   The More Recent Evidence

   37.This section is structured to firmly establish that the position of Group Accountant, occupied by Palavinnage Senani Muthukumarana within MPC World Group Pty Ltd (hereinafter referred to as "the company"), is genuine, fulfilling the specific criteria set forth under paragraph 2.72(10)(a) of the Migration Regulations 1994 (Cth).

   38.Through a detailed examination of the company's organisational structure, strategic objectives, and the specific responsibilities and qualifications associated with the role, this submission underscores the indispensability and authenticity of the Group Accountant position.

   39.Organisational Structure and Strategic Imperatives. The organisational structure of the company is intricately designed, reflecting a complex web of operations that necessitates specialised roles for its efficient management. This complexity is not merely structural but deeply entwined with the company’s strategic imperatives, making the role of a Group Accountant critical for overarching financial oversight and integration across diverse business units.

   40.Detailed Departmental Overview and Leadership Emphasis. An in-depth overview of the company's departments reveals a deliberate strategy to leverage specialised teams for operational excellence. The emphasis on leadership and management within this structure signals the critical need for roles that can bridge strategic vision with operational reality, a gap aptly filled by the Group Accountant, whose expertise ensures financial decisions are aligned with company objectives.

   41.Workforce Composition and Operational Demands. The company's commitment to diversity and regulatory compliance is mirrored in its workforce composition. This diversity, paired with the operational demands of managing a multi-faceted organisation, necessitates a comprehensive approach to financial management and planning—a core function of the Group Accountant role, substantiating its genuineness.

   42.Strategic Recruitment and Organizational Growth. The identification of the Group Accountant role as a key component of the company's growth strategy is a testament to its genuineness. This forward-looking recruitment approach underscores the company’s recognition of the essential nature of specialised financial oversight for sustainable development and expansion.

   43.External Validation by Roger Fredrick. The endorsement by Roger Fredrick, a Chartered Accountant, serves as external validation of the complex financial landscape of the company and the indispensable role played by the Group Accountant in navigating this complexity. His insights reinforce the genuine need for specialized financial expertise within the company.

   44.Comprehensive Responsibilities of the Role. The job description for the Group Financial Accountant encompasses a wide array of critical financial management tasks, from strategic planning support to operational efficiency monitoring. This breadth of responsibility not only confirms the role's essential nature but also its alignment with the criteria for a genuine position under Australian migration law.

   45.Business Activities and Strategic Financial Management. The company's business activities, spanning various sectors, necessitate nuanced financial oversight, a responsibility adeptly managed by the Group Accountant. The strategic financial management facilitated by this role is crucial for the company's adaptability and growth, further evidencing the position's genuineness.

   46.Talent Acquisition Strategy and Workforce Evolution. The strategic decision to sponsor a non-Australian employee for the Group Accountant role reflects an understanding of the global talent landscape and its importance to the company's financial strategy. This decision underscores the genuine need for a role that is pivotal to the company’s evolving business model and strategic objectives.

   47.Expansion and Need for Specialised Financial Governance. The company's expansion through acquisitions and its engagement in sophisticated financial transactions highlight the growing need for professional financial governance. The establishment of the Group Accountant role is a direct response to this need, emphasising the position's authenticity and criticality to the company's operational strategy.

   48.Qualifications and Experience of the Applicant. The qualifications and extensive experience of Senani Muthukumarana directly correlate with the demands of the Group Accountant position. Her background and career progression are indicative of her capability to meet the role's requirements, reinforcing the position’s genuineness within the organisational framework.

   Conclusion.

   49. The comprehensive analysis presented herein demonstrates the Group Accountant position's critical importance to MPC World Group Pty Ltd's financial and strategic operations. The role fulfills all criteria set forth under paragraph 2.72(10)(a) of the Migration Regulations 1994 (Cth), affirming its status as a genuine position within the company.

   Disposition

   50.Given the evidence and arguments presented, it is respectfully contended that the Group Accountant nomination be approved, acknowledging the role's essential contribution to the financial stewardship and strategic direction of MPC World Group Pty Ltd. This approval will not only align with the regulatory framework but also support the company's continued growth and success in its respective markets.

   …

1. On 11 April 2024, the Tribunal wrote to Mr Chelvaratnam via the agent to invite him to attend a hearing on behalf of the applicant on 10 May 2024. He was requested to provide any additional submissions in support of the applicant’s case by 3 May 2024.

2. On 3 May 2024, the applicant’s agent provided the following additional material:

   ·Letter dated 1 May 2024 from Mr Chelvaratnam confirming the nominee’s employment with the applicant since 29 January 2020 and the current terms of her employment and salary. He notes that she has ‘been an integral part of our team and has consistently demonstrated professionalism, expertise and dedication in her role. Her contributions have significantly impacted our financial operations and overall success;’ and

   ·Further letter dated 3 May 2024 from Mr Chelvaratnam setting out the nominee’s duties in her position as Group Financial Accountant, being:

   1.    Preparation of monthly and annual financial statements for multiple companies within the group

   · Preparation of monthly and annual financial statements including Profit and loss statements, Balance sheets, and Statement of Cash Flow Position for companies within MPC group through Xero Accounting Software that allows management to assess the group’s financial health, identify trends, and make informed decisions.

   · Preparation of special purpose financial statements and management reports to present to investors during different stages of new product launch from market research to launch.

   · Check the accuracy of transactions reconciled by bookkeepers and junior staff by accounting standards and company policies.

   · Check the accuracy of financial statements and Business Activity Statements (BAS) before sending them to Tax agents and external accountants for the lodgement of company tax returns and quarterly Business Activity Statements.

   · Coordinate with the Research and development tax incentive team to work out R&D tax incentives and keep monitoring R&D research expenditure.

   2.    Advising on formulating budgetary policy in multi-companies

   · Preparing monthly cash flow statements with the collaboration of department managers regarding budgetary requirements for each month.

   · Formulating quarterly departmental and intercompany budgets through analyzing the past cost behavior of each department and inter-companies.

   · Discuss and make control mechanisms when the overstated budgetary requirements from departments can be inclined with the organization's monthly objectives.

   · Offering recommendations for cost control and income stabilization to develop effective multi-company budgets, aiming to prevent both over and understatements.

   3.    Overseeing and managing operating costs while analyzing income-expenditure behaviors across multiple companies.

   · Analyzing production and operating costs across multiple companies and identifying the necessity for cost controls while ensuring revenue enhancement in each production line

   · Regularly tracking expenses and income every week assists in managing financial health and identifying fluctuations in sales or expenses

   · Conducting department-wise financial performance evaluations through incomeexpenditure analysis.

   · Providing cost control and profit maximization strategies tailored to each department based on income-expenditure analysis.

   4.    Performing financial investigations and audits and providing advice on various financial matters within group production and sales.

   · Monitoring the intercompany loans and reconciliation of money transfers between companies within the group every month to see the overall group position.

   · Reconciliation of director loan, investors' equity and liability position, and advice on the overall health of the business

   · Analysis of capital purchases of the group, performing return on investments before purchasing new plant and equipment for the manufacturing facility

   5.    Ensuring Accuracy of Daily Financial Records, financial reports, and compliance

   · Meticulously verify the accuracy of daily financial transactions entered the Xero system by cross-checking related supporting documents and ensuring the accuracy of financial information across companies.

   · Undertaking internal audits and checking the supporting documents to ensure the reliability and accuracy of the information to the management and stakeholders.

   · Implementing internal controls by delegating the work through department staff and undertaking continuous monitoring of their work to avoid the risk of fraud and errors.

   6.    Assisting with preparing taxation returns and liaising with financial institutions and government bodies.

   · Assisting with external accountants to prepare tax returns for multi-companies providing them with timely prepared financials and related documents as required.

   · Assisting with external accountants' lodge monthly and quarterly BASs and PAYG while providing GST reports and related invoices for the multi-companies.

   · Negotiate with the taxation office and related government bodies to reduce interests and payment arrangements across multiple companies to minimize added costs on interests.

   7.    Advice on selecting an Accounting System and implementings

   · Carry out system audits and Implementation of accounting systems where necessary for the group of companies.

   · Develop and monitor recently introduced inventory management system – UNLEASHED by her and train relevant staff.

   · Integration of UNLEASHED software system with the existing accounting software Xero and customize where necessary.

   8.    Maintaining internal control systems:

   · Monitor existing systems in companies to detect wastage, theft, and inaccuracies.

   · Track and manage inventory in real-time to bring down stock holding costs of manufacturing beverages and cosmetic products.

   · Conducting periodic reviews and assessments to evaluate the effectiveness of internal control systems.

   Senani (Sam) performs these tasks competency and with commitment and enthusiasm. She has demonstrated the ability to work under pressure and to plan and organize successfully to meet tight deadlines. Her close attention to detail has resulted in meticulous and accurate work. Senani has been an integral part of our team…

3. Also provided were:

   ·Activity Statement for Caravanning and Camping Pty Ltd for July to September 2022 (prepared by Trident Financial Group Pty Ltd);

   ·financial statements for this company for 2022/2023 (also prepared by Trident Financial Group Pty Ltd);

   ·Activity Statement for the Trustee for Iluma Solutions Discretionary Trust for July to September 2021 (prepared by Trident Financial Group Pty Ltd),

   ·that company’s financial statements for 2022/2023 (also prepared by Trident Financial Group Pty Ltd);

   ·Activity statement for Skin Chemist Lab Pty Ltd for period October – December 2021 (prepared by Trident Financial Group Pty Ltd);

   ·financial statements for that company for 2022/2023 (also prepared by Trident Financial Group Pty Ltd);

   ·Activity Statement for MPC Global Innovations Pty Ltd for period July to September 2021 (prepared by Trident Financial Group Pty Ltd);

   ·financial statements for that company for 2022/2023 (also prepared by Trident Financial Group Pty Ltd);

   ·Activity Statement for the Trustee for MPC World Group Trust for period July 2021 to September 2021 (prepared by Trident Financial Group Pty Ltd);

   ·financial statements for that company for 2022/2023 (also prepared by Trident Financial Group Pty Ltd); and

   ·group organisational chart for MPC World Group of Companies.

4. On behalf of the applicant, Mr Chelvaratnam appeared before the Tribunal on 10 May 2024 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s lawyer. Both appeared by videoconference.

5. The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. Mr Chelvaratnam told the Tribunal about the history of his business enterprises, noting that he established his first company, MPC Mags and Tyres, about 20 years ago. His mother’s initials were MPC so this featured in most of his company names. MPC Mags and Tyres went well and in 2015, Mr Chelvaratnam decided to merge the company with another larger company, Exclusive Tyre and Wheel. Through this venture, he learned what was required for business expansion and to list a company. He also gained experience in acquiring other businesses to build his own business. In 2017, the merged company listed on the ASX and this was very profitable.

7. Mr Chelvaratnam said that he started diversifying his business by starting new businesses and acquiring others. He told the Tribunal that Iluma Solutions Pty Ltd was established to purchase and sell electrical goods, and that it was very successful. Things grew even more busy between 2018 and 2020, particularly after Mr Chelvaratnam established Aquarush, now MPC World Group Pty Ltd, and built a manufacturing facility. Until this time, Mr Chelvaratnam told the Tribunal, his various businesses had used the services of Exclusive Tyre and Wheel’s Chief Financial Officer (CFO) but this became unworkable due to the number of different business activities in Mr Chelvaratnam’s group. Mr Chelvaratnam said that for this reason, he hired an ex-Accountant to assist with the businesses’ financial operations, but there were issues with this person’s skills and competency. Mr Chelvaratnam said that he engaged Roger Fredrick of Trident Financial Group to review the work undertaken by the ex-Accountant, which uncovered and confirmed various issues with the companies’ finances and the way they were being handled. Mr Chelvaratnam said that he had to let this financial manager go as a result, and to recruit a replacement. He noted that Mr Fredrick assisted him with selecting a suitable candidate, being the nominee.

8. Mr Chelvaratnam told the Tribunal that his business group had continued to expand, with the establishment and acquisition of several skin care companies (Skin Chemist Lab, Naked Klay, Trade Mark and Edited Skin), which he ventured into as his wife and daughter were both cosmetic chemists. He noted that there had been significant expansion in the last 2 to 3 years, and he was about to sign agreements with Mecca in Australia and a US company for the sale and distribution of the Naked Klay product line, which was a substantial deal. Mr Chelvaratnam said that he had recently acquired a 50% share in a skin spa called Nirvana, which was in line with his aim to have a spa franchise in which his other companies’ skin care products would be stocked. In the meantime, he had also recently acquired a camping and caravan business which was worth approximately $32 million. He noted that the businesses operating under his group were diverse and numerous, and therefore it was crucial to him to have a financial manager/inhouse Accountant who was skilled and hard working, and in whom he could place complete trust. He emphasised that the nominee had proven this since taking on the role. She was completely across all of the entities within the group and their various aspects and operations. One of her major achievements since coming into the group was implementing the individual accounting systems used by each company and imposing a universal one called Unleashed, which had made analysis and data gathering much more effective, transparent and efficient.

9. Mr Chelvaratnam said that he was highly business-oriented and was looking at other mergers and expansions to grow the group. He told the Tribunal that the group had recently appointed a high profile chairman (Dave Fenlon, formerly CEO of BWX, a global beauty and wellness group) and would need to recruit additional accounting staff to assist the nominee. Mr Chelvaratnam confirmed that the nominee carried out the responsibilities set out in ANZSCO for an Accountant (General) with the exception of lodging company tax returns and finalising financial statements. While she prepared all of the information and analysis required for their preparation, the final documents were signed off, and lodged, by Trident Financial Group. Mr Chelvaratnam said that this was largely due to the loyalty he felt towards Mr Fredrick of Trident Financial Group, who had rendered him a great deal of assistance over the years to grow the business, but that it was planned that the nominee would register as a tax agent herself in the near future and take over these tasks from the external accountants. Mr Chelvaratnam further noted that the group had internal bookkeepers and accounts clerks already but that their tasks were far more limited than those of the nominee, who worked across all of the group’s companies and undertook high level analysis and financial monitoring and compliance work.

10. Mr Chelvaratnam told the Tribunal that the group was continuing to expand significantly and there was a genuine need for an in-house Accountant (General). He described the nominee’s role as crucial and that as a result of her work within the group, its external accountants’ fees had decreased significantly, as she had taken over most of the work formerly undertaken by Trident. She also liaised effectively with Trident Group when necessary.

11. In response to the Tribunal’s query, Mr Chelvaratnam said that the nominee’s salary had been reviewed since she commenced, and was under review at present, as he accepted that it needed to be increased to reflect the scope of her role within the group. He noted that he was cautious with her salary level initially, until he was certain that he could trust her in the role and she was going to stay in the business long term.

12. Following the hearing, the Tribunal received the following:

    ·letter dated 21 May 2024 from Mr Chelvaratnam providing updated salary information for the nominee; and

    ·submissions on the determination of the annual market salary rate (AMSR) from the applicant’s agent dated 21 May 2024.

13. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.

    The nomination must comply with the prescribed process

15. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

16. The Tribunal has reviewed the nomination application lodged with the Department and is satisfied that it was made in accordance with the process set out in reg 2.73 as it:

    ·nominated an occupation for approval in relation to the proposed applicant for a subclass 482 visa;

    ·was made on the approved form and accompanied by the required fee;

    ·was accompanied by the applicable nomination training contribution charge;

    ·was made in the Medium Term stream for the occupation of Accountant (General) (ANZSCO code 221111);

    ·identified the proposed nominee, Ms Palavinnage Senani Muthukumarama, and the length of time of the proposed appointment; and

    ·contained the required written certifications.

17. For these reasons, the Tribunal finds that the requirements of reg 2.72(3) are met.

    No adverse information known to Immigration

18. Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

19. The Tribunal has reviewed the Department’s files and is satisfied that there is nothing to indicate that there is any adverse information known to Immigration about the applicant or a person associated with the applicant.

20. For these reasons the Tribunal finds that the requirements of reg 2.72(4) are met.

    Nominator is a standard business sponsor

21. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

22. The information provided by the applicant indicates that it is an approved SBS, valid to 2 August 2026.

23. For this reason, the Tribunal finds that the requirements of reg 2.72(5) are met.

    Payment of debt mentioned in s 140ZO

24. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

25. There is no indication that the applicant has had any debt in relation to s 140ZO of the Act.

26. For this reason, the Tribunal finds that the requirements of reg 2.72(5A) met.

    Requirements for existing subclass 457 or subclass 482 visa holders

27. The criteria for approval of a nomination contain several requirements if a subclass 457 or subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:

    ·the applicant must list on the nomination each person granted a subclass 457 or subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);

    ·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).

28. As the nominee is not the holder of a subclass 457 or subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.

    Specified occupation

29. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.

30. The Tribunal has reviewed LIN 19/048 and is satisfied that it contains the nominated occupation of Accountant (General) (ANZSCO code 221111), and that it provides that occupation is subject to the following conditions (that is, the nomination cannot be approved if the nominated position falls within any of the occupational caveats listed below):

    ·Note 6 – the position is a clerical, bookkeeper or accounting clerk position;

    ·Note 19 – the position is in a business that has an annual turnover of less than AUD1,000,000; and/or

    ·Note 21 – the position is in a business that has fewer than 5 employees.

31. The Tribunal is satisfied from the most recent organisational chart provided, and from Mr Chelvaratnam’s evidence at hearing, that the applicant company employs at least 5 employees. It is further satisfied from the applicant’s financial statements for 2022/2023 that its turnover for that financial year was $1,513,416.

32. Based on the position description and Mr Chelvaratnam’s evidence at hearing (discussed further below in the section on the ‘genuine position’ requirement), the Tribunal is satisfied that the nominated position involves the duties set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary for an Accountant (General), and is not a clerical, bookkeeping or accounts clerk role.

1. Accordingly, the Tribunal is satisfied that the nominated position is not excluded from being approved by any of the occupational caveats listed in LIN 19/049.

2. For these reasons, the Tribunal finds that the requirements of reg 2.72(8) are met.

   Position must be genuine and full-time

3. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

4. The nominee’s employment contract of 3 May 2024 provides for full time employment. The Tribunal therefore finds that r.2.72(10)(b) is met.

5. In relation to r.2.72(10)(a), the Tribunal notes the concerns expressed by the delegate at the time of the primary decision in September 2021 that the apparent size and scope of the applicant’s business did not warrant a person performing the duties listed in the ANZSCO dictionary for an Accountant (General) and thus the applicant did not have a genuine need for the nominated occupation within its business.

6. The Tribunal is assessing the situation nearly 3 years later. It is satisfied that the position associated with the nominated occupation is genuine, and that the applicant has a genuine need for the nominated position within the business. In reaching this conclusion, the Tribunal notes that it has had the benefit of additional updated and detailed documentary and oral evidence from Mr Chelvaratnam on behalf of the applicant. The Tribunal found Mr Chelvaratnam to be a credible and forthright witness who was able to describe in detail the development of his various business interests, their operations, the factors that led to the applicant recruiting an in-house Accountant, that position’s relationship to the applicant’s external Accountants, and the importance of the nominated position to the applicant’s business operations. From all of the available evidence, the Tribunal is satisfied that:

   ·Mr Chelvaratnam operates 8 companies, including the applicant company, under his MPC World Group of companies, which collectively generate significant revenue;

   ·the nominee is employed by the applicant company but acts as the internal Accountant for all of the companies in the group;

   ·the original Accountant was Mr Roger Fredrick of an external firm, Trident Financial Group. However, as the number of companies in the Group grew, he and Mr Chelvaratnam identified the need for an in-house Accountant;

   ·the person originally recruited to this role proved to be unsatisfactory and the nominee was subsequently recruited to the role in January 2020;

   ·since that time, the Group and its operations have continued to expand significantly, as has the nominee’s role and responsibilities, which has been reflected in her salary increases;

   ·the companies within MPC World Group represent a diverse range of businesses, including the sale of lighting, caravans and camping gear, and the manufacture and sale of skin care products, cleaning products, and custom labelled bottled water and other beverages, including demineralised water;

   ·the nominee in her role as in-house Accountant carries out the duties listed for an Accountant (General) in ANZSCO, including assisting in formulating and accounting policies, preparing financial statements for presentation to management and governing and statutory bodies (although these are currently finalised and lodged by Trident Financial Group, the external Accountants), conducting financial investigations preparing reports, undertaking audits and advising on maters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation, examining operating costs and income and expenditure, 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 tax returns (although these are currently finalised and lodged by Trident Financial Group, the external Accountants), liaising with financial institutions and brokers to establish funds management arrangements, introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems, maintaining internal control systems, and monitoring cash flow within the Group;

   ·while the financial statements, BAS and tax returns of the companies within the Group are still finalised and lodged by Mr Fredrick of Trident Financial Group, the nominee does the preparatory work for these and liaises closely with Mr Fredrick. Mr Fredrick relies on the nominee to provide the correct, accurate information. It is intended that the nominee will in future register as a tax agent and thus the functions of preparing and lodging tax returns, BAS and financial statements will then be moved to solely in-house to the nominee. For the moment, finalisation and lodgement of these documents still rests with Mr Fredrick as Mr Chelvaratnam feels loyal to him due to his assistance to Mr Chelvaratnam over the years;

   ·the nominee is supported in her role by an Accounts and Administrative Manager, a Bookkeeper and 2 Administrative Officers/Clerks, with the need for more support staff being identified by Mr Chelvaratnam due to the continuing expansion of the Group and its operations.

7. The Tribunal is satisfied from the above that the scope of the applicant’s operations do genuinely need an in-house Accountant, that the nominee carries out the higher level duties set out in ANZSCO for an Accountant (General) and it finds that the position associated with the nominated occupation is genuine. Therefore, it finds that r.2.72(10)(a) is met.

   Employment under contract

8. Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the relevant written instrument. There is no evidence that the nominated occupation is specified. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.

9. The applicant originally provided a contract with the nominee dated 19 July 2021 to the Department; and the most recent employment contract between the applicant and the nominee is dated 3 May 2024.

10. For these reasons the requirements of reg 2.72(11) are met.

    Annual earnings

11. Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033 (currently $250,000). Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate (the AMSR) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the AMSR, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 18/033 (currently $53,900 for applications lodged before 1 July 2023), unless the AMSR for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);

    ·the nominee’s annual earnings in relation to the occupation will not be less than the AMSR for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);

    ·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the AMSR for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

12. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

13. The Tribunal is satisfied that there is no equivalent Australian employee to the nominee working in the business. Accordingly, item 8 of IMMI 18/033 provides as follows:

    …

    For the purposes of subregulation 2.72(17) of the Regulations, and where section 7 of this instrument does not apply and:

    (a) wherethere is a fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation, or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an equivalent Australian worker specified in those instruments.

    (b) Where there is no fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information.

    …

14. The Tribunal is satisfied that there is no specific Award for the occupation of Accountant (General) in Australia.  Accordingly, the Tribunal has considered relevant information, defined in IMMI 18/033 as including (but not limited to) information published on the Australian Government’s Job Outlook website (now known as Jobs and Skills Australia), job advertisements on national recruitment websites, written advice from registered employer associations and/or unions, and/or remuneration surveys generated across the relevant industry by a reputable organisation or body.

15. The Jobs and Skills Australia website (accessed 22 May 2024) does not list the median annual earnings for the occupation of Accountant (General). The Payscale website (accessed 22 May 2024) states that the average annual salary for an Accountant in Australia is $63,077, while the Indeed website (accessed 22 May 2024) states that it is $73,444. The Jora website (accessed 22 May 2024) states that the annual salary range in Australia for General Accountants is $70,000 to $90,000.

16. In her submissions, the applicant’s agent provides the following advice about the AMSR:

    …

    Introduction

    1. These submissions have been prepared in support of the applicant's review application before the Tribunal.

    2. On the 10 May 2024, a notice was received requesting further information under the Migration Regulations 1994, r.2.72(15) specifically addresses the requirements related to the Temporary Skill Shortage (TSS) visa (subclass 482) in terms of ensuring that the visa applicant will be paid the "market salary rate."

    3. The provision r.2.72(15) requires the sponsoring employer to demonstrate that the terms and conditions of employment for the visa applicant are equivalent to those provided to an Australian citizen or permanent resident performing the same work in the same location. This is to ensure that the applicant is paid at least the market salary rate and not less than the Temporary Skilled Migration Income Threshold (TSMIT).

    Policy

    1. The sponsoring employer must provide evidence that the proposed salary for the visa applicant is in line with the salary paid to Australian workers in similar roles within the same location and industry.

    2. We have provided figures from Indeed showing an average salary of $76,946 per annum, whilst Seek shows an average annual salary of $70,000 to $85,000.

    3. We have also included the following comparable recent job advertisements from for Accountant positions in Melbourne, indicating the following salaries:

    • Accountant at Mex Accounting, is offered a salary ranging between $70,000 and $75,000 per annum;

    • Company Accountant at Speedy Curtains is offered a salary between $70,000 and $75,000 per annum;

    • Accountant at Consolidated Travel is offered a salary between $70,000 and $75,000 per annum;

    • Accountant at David Chen and Associates is offered a salary between $70,000 and $77,000 per annum;

    • Accountant at Johnson Partners is offered a salary between $60,000 and $80,000 per annum;

    • Company Accountant at Palace Cinemas is offered a salary between $60,001 and $80,000 per annum.

    • The sponsor has also provided a letter addressing the nominees salary and proposed salary increase as of 1 July 2024.

    Temporary Skilled Migration Income Threshold (TSMIT)

    1. The salary meets and exceed the TSMIT, which is the minimum salary threshold set by the Department of Home Affairs.

    Conclusion

    Based on the analysis of the above, the sponsor has complied with the market salary rate for the nominated position and will be paying the nominee no less than an Australian citizen or permanent resident in the same position. It is evident that MPC World Group Pty Ltd ATF MPC World Group Trust nomination application for a Temporary Skill Shortage Visa (subclass 482) –visa merits favourable reconsideration.

    …

17. Having regard to all of the above information, the Tribunal considers an AMSR of $75,000 to be appropriate for the nominated occupation, as it sits within the range identified in 2 of the job advertisements listed in the agent’s submissions, and within the ranges identified on the Seek and Jora websites.

18. In his letter of 21 May 2024, Mr Chelvaratnam provided the following advice about the nominee’s salary:

    …

    [The nominee] joined the position of Accountant (General) at [the applicant] in January 2020. Her initial salary upon commencement was $62,400, which notably exceeded the prevailing market average of $55,000 - $60,000 at that time. Since her commencement, [the nominee] has consistently exhibited exceptional dedication and performance, resulting a salary adjustment in October 2021 to $64,896, reflecting a standard annual increment of more than 3% in line with industry practices within Australia.

    As of 16^th May 2024, [the nominee’] remuneration stands at $72,904, representing a notable 14% increase compared to her initial salary over the course of her tenure at [the applicant]. However, recognising [the nominee’s] pivotal role within the organisation and her substantial enhancement of skills and capabilities, we have conducted a thorough review of her performance and prevailing market conditions. Consequently, we are proposing a further salary adjustment for [the nominee]. Effective 1^st July 2024, [the nominee’s] salary will be revised to $80,000 plus superannuation, reflecting an increase consistent with the updated annual increment of more than 4%, aligned with prevailing industry standards in Australia. It is imperative to note that [her] salary is subject to annual review each year based on performance evaluations, company salary increment policies, and market benchmarks.

    Sources Relied Upon to Determine [the nominee’s] Salary:

    In determining [the nominee’s] salary, we have consulted various sources to ensure alignment with industry standards and market conditions. Typically, we utilise internal salary benchmarks to guide our decisions regarding employee compensation, considering factors such as professional qualifications, years of experience, and dedication to work. We have conducted internal salary benchmarking exercises to assess [the nominee’s] remuneration against similar roles within our organisation and the broader industry. Additionally, we have engaged advisors who specialise in the accounting field. Their insights and recommendations have been instrumental in determining a competitive salary package for [the nominee].

    …

19. Using the methodology set out in IMMI 18/033, the Tribunal has determined that the AMSR in this case is $75,000. It therefore finds that the requirements of reg 2.72(15)(c) are met.

20. As the AMSR of $75,000 is higher than the TSMIT of $53,900, the Tribunal finds that the requirements of reg 2.72(15)(d) are met.

21. The Tribunal notes that the nominee’s current earnings are $72,904, which is slightly below the AMSR. However, the Tribunal considers that it is reasonable in the circumstances to disregard this criterion given Mr Chelvaratnam’s advice that the nominee’s salary will increase to $80,000 on 1 July 2024. The Tribunal accepts that this will occur, given Mr Chelvaratnam’s evidence of increasing the nominee’s salary several times since the commencement of her employment. Accordingly, the Tribunal finds that the requirements of reg 2.72(15)(e) are met.

22. As the nominee’s present earnings of $72,904 exceed the TSMIT, the Tribunal finds that the requirements of reg 2.72(15)(f) are met.

23. Finally, the Tribunal is not aware of any information indicating that the AMSR is inconsistent with Australian labour market conditions relevant to the occupation, and therefore finds that the requirements of reg 2.72(15)(g) are met.

    Employment conditions

24. Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.

25. The Tribunal has reviewed the most recently provided contract of employment for the nominee and is satisfied that there is no indication that the conditions of his employment will be any less favourable than those that would apply to an Australian citizen or permanent resident performing equivalent work at the same location.

26. If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) applies; however, there is no evidence before the Tribunal to indicate that the applicant has engaged in discriminatory recruitment practices (see further below in the discussion of the labour market testing requirement).

27. For these reasons, the Tribunal finds that the requirements of reg 2.72(18)(a) and (b) are met.

    Labour Market Testing

28. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).

29. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument LIN 18/036. In addition:

    ·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;

    ·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);

    ·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and

    ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

1. The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument LIN 18/036. In summary, labour market testing must:

   ·have been undertaken in the 4 months immediately before the nomination application was made, and have run for at least 4 weeks;

   ·involve advertisements in English which include details of the position title and description, the skills and/or experience required, the name of the employer, and the salary (if not greater than $96,400 per year); and

   ·involve at least 2 advertisements in a recruitment website with national reach, print media with national reach, radio with national reach, and/or (if the applicant is an accredited sponsor) on the applicant’s website.

2. In the nomination application, the applicant indicated that:

   ·it had conducted labour market testing by advertising for 28 days to 3 months from 10 June 2021;

   ·the nominated position was specifically advertised on online sites, uWorkin, Jora, and Job Active from 10 June 2021 for 4 weeks on the first 2 sites and from 17 June 2021 on the last 1 for the last site;

   ·the advertisements were in English included the position title, the fact it was full time and the salary range;

   ·there were 127 applicants who were unsuitable due to not having suitable qualifications and/or experience, unclear residence status and/or different occupation; and

   ·no Australian citizen or permanent resident employees were retrenched or made redundant in the 4 months prior to lodgement of the nomination application.

3. Evidence was provided with the nomination application of the applicant paying for the above advertising, and the text of the advertisements.

4. Based on the above evidence, the Tribunal is satisfied that the labour market testing requirements in s 140GBA are met.

   Nomination training contribution charge

5. Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).

6. The Tribunal is satisfied from the Department’s records that the applicant paid its assessed nomination training contribution charge, and therefore it finds that the requirements of s 140GB(2)(aa) are met.

7. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

   DECISION

8. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

   Alison Mercer
   Member

   
   

   ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

   (1)This regulation applies in relation to a person who:

   (a)is any of the following:

   (i)       a standard business sponsor;

   (ii)      a person who has applied to be a standard business sponsor;

   (iii)     …

   (iv)    …

   (b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

   (i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

   (ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;

   (iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

   (2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

   Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

   (3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

   (4)The Minister is satisfied that either:

   (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

   (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

   (5)The Minister is satisfied that:

   (a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or

   (b)…

   (5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

   (6)If the nominee holds:

   (a)a Subclass 457 (Temporary Work (Skilled)) visa; or

   (b)a Subclass 482 (Temporary Skill Shortage) visa;

   the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

   (7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

   (8)The Minister is satisfied that:

   (a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

   (i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or

   (ii)      …; and

   (b)the occupation applies to the nominee in accordance with the instrument or work agreement.

   (9)The Minister may, by legislative instrument, specify occupations and, for each occupation:

   (a)whether the occupation is:

   (i)       a short term skilled occupation; or

   (ii)      a medium and long term strategic skills occupation; and

   (b)either:

   (i)       the 6-digit ANZSCO code for the occupation; or

   (ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and

   (c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and

   (d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

   (i)       the person who nominated the occupation;

   (ii)      the nominee;

   (iii)     the occupation;

   (iv)    the position in which the nominee is to work;

   (v)     the circumstances in which the occupation is undertaken;

   (vi)    the circumstances in which the nominee is to be employed in the position.

   (10)The Minister is satisfied that the position associated with the occupation is:

   (a)genuine; and

   (b)a full-time position.

   (10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

   (11)If:

   (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

   (b)the person is not an overseas business sponsor; and

   (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

   the Minister is satisfied that:

   (d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

   (e)the person will give the Minister a copy of the contract signed by the employer and the nominee.

   (12)If:

   (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

   (b)the person is an overseas business sponsor; and

   (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

   the Minister is satisfied that:

   (d)the nominee will be engaged only as an employee under a written contract of employment by the person; and

   (e)the person will give the Minister a copy of the contract signed by the person and the nominee.

   (13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

   (14)If:

   (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

   (b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

   (c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

   the person has provided evidence to the Minister that the nominee satisfies:

   (d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

   (e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

   (15)Subject to subregulation (16), if:

   (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

   (b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

   the Minister is satisfied that:

   (c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

   (d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

   (e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

   (f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

   (g)either:

   (i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

   (ii)      it is reasonable to disregard any such information.

   (16)However:

   (a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

   (i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

   (ii)      it is reasonable in the circumstances to do so; and

   (aa)the Minister may disregard the criterion in paragraph (15)(e) if:

   (i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

   (ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and

   (b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

   (17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

   (18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

   (a)either:

   (i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

   (ii)      it is reasonable to disregard any such information; and

   (b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.

   (19)…