Mr Tax Refund Pty Ltd (Migration)

[2022] AATA 1873

Mr Tax Refund Pty Ltd (Migration) [2022] AATA 1873 (24 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tax Refund Pty Ltd

REPRESENTATIVE:  Mr Yuwen Huang

CASE NUMBER:  1901928

HOME AFFAIRS REFERENCE(S):          BCC2017/1614120

MEMBER:De-Anne Kelly

DATE:24 May 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 24 May 2022 at 4:09pm

CATCHWORDS
MIGRATION – application for approval of nomination of decision – direct entry nomination stream – accountant – need for position – company and application history – diversification and expansion of business and need for in-house staff – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 359AA, 360
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii)

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 21 January 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 5 May 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the application failed to identify a need for the nominated position.

5. The applicant appeared before the Tribunal on 5 April 2022 to give evidence and present arguments.

6. The applicant was represented in relation to the review by Mr Yuwen Huang MARN

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

   Section 359AA of the Act

8. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act 1958 (Cth), that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.

9. Section 359AA provides as follows:

   (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)   if the Tribunal does so—the Tribunal must:

   (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii) orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

11. On 5 May 2017, the applicant Mr Tax Refund Pty Ltd ABN: 16 155 811 448 lodged a Regional Sponsored Migration Scheme employer nomination subclass 187 visa in the Direct Entry Stream for the position of Accountant on $50,000 per annum to be employed in Nerang Qld 4211 in favour of Ms Sisi WU.

12. Mr Burns advised that the business was now named Accounts Direct and commenced operation in 2011 undertaking high volume tax returns but his partner went into receivership and he bought him out and they started Pop Up Tax returns in the Perth area. They had a few issues with free and online tax services and had a decline in 2018 and 2019 but picked up with other business ventures. They were hit by COVID-19 due to retail exposure and lost 35 % of business. Learnt through COVID-19 to pivot the business to cash flow management and venture capital raising. They developed two pieces of proprietary software and eliminated the need for trust accounting, and they are expanding into other areas but keeping the bread and butter of tax returns. The Tribunal is satisfied that despite the company name changes the nominator is essentially unchanged and the original director is still the nominator representative.

13. The company was represented by the Director Mr Stephen Burns.

14. Mr Burns explained that the financials between the two applications may not match as he has five companies, and the applications were lodged separately.

15. The Tribunal asked why the applicant had sought to withdraw the applications around October 2021 and had immediately asked to re-instate the review applications to which he responded saying that such a long period of time had elapsed being some 4 to 5 years that he doubted they would be approved.

16. The Tribunal noted that the employment contract dated 14 March 2017 and Tax Agency Licence states “Employee has been engaged and has been deemed as a successful applicant following recruitment process.”

17. Letter 18 December 2018 – Agent states “Currently the employer has a temporary accountant on secondment from another entity filling in at the Nerang branch so the office is staffed during office hours. However, this is putting undue pressure on the Accountant as his trying to manage two roles while the visa applications are decided for the permanent full time Accountant position”.

18. When he was asked why the nominees had not worked for the business he said that they had worked in a training capacity but he had been reluctant to put the time needed into orientating and training them as he didn’t want to waste anyone’s time. He had not been in contact with the nominees for quite some time but was now in contact again and once they were granted a visa they could get their tax accreditation.

    The application is compliant: reg 5.19(4)(a)

19. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

20. Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 7 February 2018 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.

21. The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.

22. Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.

23. The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Ms Sisi WU was identified in the nomination application and this indicates there is a need for the position.

24. Accordingly, the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

25. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

26. The applicant has financial statements from FY 2016 to FY 2021 as evidence.

27. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour-hire: reg 5.19(4)(c)

28. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator

29. There is no evidence that the business labour hires, and the owner confirmed this in the hearing.

30. Accordingly, the requirement in reg 5.19(4)(c) is met.

    Term of employment of the visa holder: reg 5.19(4)(d)

31. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

32. The business has had some patchy financial results however the Tribunal accepts that it has continued to trade and Mr Burns was a credible and enthusiastic proponent for this business and has plans to expand with software solutions related to the accounting field. The Year-to-Date YTD 31 December 2021 shows a profit of $168,194 from revenue of $943,340. The Tribunal considers that the applicant has the financial capacity such that the nominee can be employed full-time for at least two years.

33. Employment contract dated 6 February 2017 which does not exclude the possibility of an extension of time.

34. Accordingly, the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

35. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

36. The Payscale website for Australia has a salary level from $45,000 to $82,000 with an average salary of $59,529. While the salary is at the low end of the scale the Tribunal accepts the nominator’s submission that this is a competitive market and the salary is realistic for his business.

37. Accordingly, the requirements of reg 5.19(4)(e) are met.

    No adverse information known to Immigration: reg 5.19(4)(f)

38. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

39. The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator. This was confirmed by the applicant at the hearing.

40. Accordingly, the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

41. Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

42. The Tribunal can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the applicant at the hearing.

43. Accordingly, the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

44. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

    Position in regional area – r.5.19(4)(h)(ii)(A)

45. The Tribunal needs to determine if the position is in regional Australia. The business is located in Nerang Qld 4211. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia.

46. The applicant can choose therefore to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.

47. Accordingly, r.5.19(4)(h)(ii)(A) is met.

    Genuine need for the position r.5.19(4)(h)(ii)(B).

48. The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control.

49. There was no evidence the applicant works or has worked for the business.

50. It appeared from the latest organisation chart that neither of the nominees are working in the business. The payroll summary to FY 2021 does not show either of the nominees working in the business for FY 2021. The Tribunal raised this concern with the nominator.

51. Mr Burns explained that there were a range of reasons for this but there is a dire accounting shortage in Australia and from a cultural perspective his partner is Asian. He has had great success with employing Chinese people as they are generally very good in the accounting field. The business is expanding and there is a need for the nominee to handle the workload. They have used contractors for the past couple of years and they pay a % of revenue, but this is not optimal because they lose a significant amount of their margin and they want to convert to inhouse salaries which are very affordable for them. They suffered delays because of COVID-19 affecting the business.

52. The Tribunal finds for the reasons above that there is a genuine need for the nominator to employ a person, identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control.

53. Accordingly, r.5.19(4)(h)(ii)(B) is met.

    Cannot be filled. r.5.19(4)(h)(ii)(C)

54. The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

55. There appeared to be no advertisement and the Tribunal raised this with the nominator. He advised that there were lots of advertisements on Seek for Gold Coast accountants at the time and required experience and only one person applied and but did not make the interview. He provided the material to the agent. They advertised right through COVID-19 and had another person working with them and he was doing very well. The typical candidates that apply are broken down into 70% Asian, 15% Indian and only 10% are Australian. Overall, they are struggling to get good staff and a lot of people join them and move on quickly and the 2-year period for a visa applicant is attractive and one has moved on with praise from them and works a few hours for them still. They need good staff to stay.

56. The Tribunal accepts the director’s explanation and supporting documentation and considers that the regulation in this case is met.

57. Accordingly, r.5.19(4)(h)(ii)(C) is met.

    Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)

58. The Tribunal has carefully considered the work undertaken by the nominators business and the Position Description provided and finally determined that the tasks of the position generally correspond to the tasks of a position specified by the Minister in an instrument being the position of ANZSCO - Accountant (General) 221111

59. Accordingly, r.5.19(4)(h)(ii)(D) is met.

    Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)

60. The nominee claims to have a Bachelor of Business (Major in Accounting) for Southern Cross University and Bachelor of Accounting from Dalian University. The Tribunal finds that the occupation is applicable to the person, identified under subparagraph (a)(ii) in accordance with the specification of the occupation.

61. Accordingly, r.5.19(4)(h)(ii)(DA) is met.

    Business operated at that place. r.5.19(4)(h)(ii)(E)

62. The business of the nominator is located at Nerang Qld 4211 and is in ‘that place’ that was specified in the employer nomination.

63. Accordingly, r.5.19(4)(h)(ii)(E) is met.

    Regional certifying body r.5.19(4)(h)(ii)(F)

64. Chamber of Commerce and Industry Queensland as the regional certifying body RCB specified in the Ministerial instrument on 21 March 2017 certified the application as meeting r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and has therefore advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraph (B) and (C).

65. Accordingly, r.5.19(4)(h)(ii)(F) is met.

66. Accordingly, the requirements of r.5.19(4)(h) and r.5.19(4) are met

67. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

68. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    De-Anne Kelly
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

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

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).