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

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).
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.
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.
The Tribunal received a review application on 12 October 2021. It was lodged on behalf of the applicant by its director,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 1438
Decision Date: 22 May 2024

CaseChat Overview and Summary

MPC World Group Pty Ltd, acting as trustee for MPC World Group Trust, sought approval for a nominated position for an Accountant (General) under the Temporary Skill Shortage (subclass 482) visa program. The delegate had refused the nomination, finding that the nominated position was not genuine, as required by paragraph 2.72(10)(a) of the Migration Regulations 1994 (Cth). The delegate's decision was based on an assessment of the role's duties within the context of the business's scale, activities, and staffing structure, concluding that the tasks did not align with the extensive responsibilities of an Accountant (General) as defined by ANZSCO for businesses with significant financial operations.

The Administrative Appeals Tribunal was required to determine whether the nominated position for an Accountant (General) was genuine, considering the specific circumstances of MPC World Group Pty Ltd. This involved assessing whether the delegate had adequately considered the business's context, the complexity of its operations across a group of eight companies, and the strategic necessity for a dedicated in-house accountant, despite the use of external accounting firms. The Tribunal also had to consider the evidence presented by the applicant, including updated organisational structures, expert correspondence from a Chartered Accountant, and the applicant's resume, in light of the delegate's identified weaknesses in reasoning.

The Tribunal found that the delegate's decision had several defects, including an overly narrow interpretation of "genuine position," a rigid application of ANZSCO definitions without considering modern business practices, and an unsubstantiated assumption that the business's size and turnover did not justify an in-house accountant. The Tribunal considered the extensive documentation provided, including details of the company's complex organisational structure, its diverse business activities across manufacturing, cosmetics, and wholesale distribution, and the projected financial performance of its various entities. It also noted the expert opinion of Roger Fredrick, a Chartered Accountant, who attested to the increasing complexity of the business group and the consequent need for an internal accountant. Furthermore, the Tribunal reviewed the qualifications and experience of the proposed nominee, Senani Muthukumarana, and the detailed job description for the Group Financial Accountant role, which encompassed strategic financial management, compliance, and advisory functions.

Based on the comprehensive evidence and a more nuanced application of the Migration Regulations, the Tribunal concluded that the nominated position of Group Accountant was genuine and met the requirements of paragraph 2.72(10)(a). Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.…

Evidence

Evidence Before The Court

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 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 Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73. 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. For these reasons, the Tribunal finds that the requirements of reg 2.72(3) are met.No adverse information known to Immigration 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. 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. For these reasons the Tribunal finds that the requirements of reg 2.72(4) are met.Nominator is a standard business sponsor Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. The information provided by the applicant indicates that it is an approved SBS, valid to 2 August 2026. For this reason, the Tribunal finds that the requirements of reg 2.72(5) are met.Payment of debt mentioned in s 140ZO Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. There is no indication that the applicant has had any debt in relation to s 140ZO of the Act. 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 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).

Decision

Reasons for decision

For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.DECISION The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.Alison MercerMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 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)…

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal finds that the requirements of reg 2.72(3) are met.No adverse information known to Immigration 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. 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. For these reasons the Tribunal finds that the requirements of reg 2.72(4) are met.Nominator is a standard business sponsor Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. The information provided by the applicant indicates that it is an approved SBS, valid to 2 August 2026. For this reason, the Tribunal finds that the requirements of reg 2.72(5) are met.Payment of debt mentioned in s 140ZO Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. There is no indication that the applicant has had any debt in relation to s 140ZO of the Act. 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 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). 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 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. 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.