Nexia Brisbane Pty Ltd (Migration)

[2020] AATA 5852

Nexia Brisbane Pty Ltd (Migration) [2020] AATA 5852 (15 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Nexia Brisbane Pty Ltd

CASE NUMBER:  1815894

HOME AFFAIRS REFERENCE(S):          BCC2017/3961834

MEMBER:Glenn O’Brien

DATE:15 December 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 15 December 2020 at 2:41pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – tasks of the position corresponding to the specified occupation of Accountant (General) – actively and lawfully operating a business – employed for two years – terms and conditions of employment – nominee’s position description – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19

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 19 May 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 26 October 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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 applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(h)(i)(a) of the Regulations because the tasks of the position did not correspond to the tasks of the occupation specified by the Minister in an instrument in writing, in this case, Accountant (General).

5. On 30 March 2020, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.5.19 of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, financial records, ASIC information, an employment contract, an organisational chart and various training plans and overviews. All material received prior to the review hearing has been duly considered by the Tribunal. After completion of the hearing the applicant provided a further document to the Tribunal being a salary review letter dated 23 August 2019 in relation to the nominee.

6. The applicant appeared before the Tribunal on 16 July 2020 to give evidence and present arguments. The applicant was represented by Ann-Marie Robertson, a Director.  The Tribunal also received oral evidence from Mr Gavin Ruddell.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   The application is compliant: r.5.19(4)(a)

9. 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 an identified person as a paid employee to work in the position under their direct control.

10. On the basis of the evidence before the Tribunal, the Tribunal is satisfied the nomination application was made using the relevant online form.   In completing the application, the required certification in relation to s.245AR(1) of the Act and the required identification of a need to employ a paid employee to work in the nominated position under the nominator’s control was provided in the application form.

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

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

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

13. The applicant company was established on 27 May 1969 and operates a network of accountancy and consulting practices within Australia.  The taxation returns for the year ending 30 June 2018 indicated the business had income of AUD5,605,072.  The business recorded a trading loss of AUD140,298 for the financial year and incurred AUD2,929,783 in wages and salary expenses.

14. The applicant has provided various other documents including taxation returns, and other business records which indicate to the Tribunal the business is actively and lawfully operating. 

15. Accordingly, the requirement in r.5.19(4)(b) is met.

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

16. 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. 

17. The Tribunal has considered the employment contract between the applicant and the nominee initially made in June 2017. The contract provides for the nominee’s direct employment by the applicant in the role of Senior Auditor.

18. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

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

20. The Tribunal had regard to the evidence of the applicant which indicated the nominee will be employed for a minimum of two years after the date of the grant of her Subclass 186 visa.  Further, the Tribunal had regard to the financial records provided to the Tribunal and the revenue generated since 2017.  Notably, the nominee has been employed by the applicant continuously on a full-time basis since 2017.  The Tribunal is satisfied that there is no information before the Tribunal that the applicant would not be in a financial position to employee the nominee for at least two years.

21. Accordingly, the requirement in r.5.19(4)(d) is met.

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

22. 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.

23. The applicant told the Tribunal the nominee’s current salary was increased to AUD90,000 per annum on 1 July 2019 having increased from a commencing salary of AUD80,000.

24. Having regard to documentation provided, the Tribunal is satisfied that the terms and conditions of employment will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

25. Accordingly the requirements of r.5.19(4)(e) are met.

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

26. 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 rr.1.13A and 1.13B. 

27. There is no information before the Tribunal to indicate there is any adverse information known to the Department about the nominator or a person associated with the nominator.

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

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

29. 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.

30. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia. 

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

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

32. 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 (see legislative instrument IMMI 15/083 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 nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

33. Notably the delegate refused the nomination on the basis that the tasks of the nominee position did not correspond to those of an occupation specified by the Minister. The position nominated in the application was an Accountant (General) (ANZSCO 221111).  

34. The Director of the applicant told the Tribunal that the application was completed without the assistance of a migration agent and the application incorrectly nominated the position as an Accountant (General) rather than as an External Auditor (ANZSCO 221213). 

35. It appears to the Tribunal this was a genuine mistake particularly given the position in the online application was described as a Senior Auditor and the documents submitted with the application included a job description and contract of employment identifying the position as a Senior Auditor.

36. Notably this application was made before 18 March 2018. The relevant occupation for the requirement in r.5.19(4)(h)(i)(A)) is not linked to any previous visa or nomination and there is no other requirement that in effect fixes a nomination in this stream to a particular identified occupation. Therefore, provided the tasks to be performed in the position correspond to one of the occupations specified in the applicable legislative instrument, it does not necessarily have to be the occupation identified initially in the application or the occupation used in the position title.

37. In this case where it appears to have been a genuine mistake that the applicant specified ‘Accountant’ instead of ‘Senior Auditor’ where all the other documents and information provided accord with the tasks to be performed by a Senior Auditor, the criterion in r.5.19(4)(h)(i)(A) may be satisfied provided the position is a specified occupation in the relevant IMMI and the tasks to be performed in the position accord with those regardless of the title of the position.

38. In this case the position of External Auditor is a specified occupation (ANZSCO 221213).

39. The nominated position of External Auditor is in the Unit Group 2212 ‘Auditors, Company Secretaries and Corporate Treasurers”.  The ANZSCO sets out indicative skill level and task for the position as follows:

    UNIT GROUP 2212

40. In this case the position of External Auditor is a specified occupation (ANZSCO 221213) and is described as:

    Designs and operates information and reporting systems, procedures and controls to meet external financial reporting requirements. Registration or licensing is required.

    Skill Level: 1

    Tasks Include:

    oarranging, giving notice of and attending meetings of directors and shareholders

    oadvising organisations’ governing boards on matters concerning compliance with stock exchange listing rules, relevant legislation and corporation practice

    osupervising organisations’ share capital by preparing documents and share issues, and handling share transfers

    ocontrolling treasury and treasury systems and establishing and reviewing risk management objectives and treasury policies

    oidentifying, managing and reporting on financial risks

    oassisting with equity management, debt management, securities and taxation planning issues

    ocollecting, analysing and interpreting information on the financial standing, cost structures and trading effectiveness of organisations

    odevising, re-organising and establishing budgetary cost control and other accounting systems such as computer-based systems

    oconducting audits and investigations and preparing financial statements and reports for management, shareholders, and governing and statutory bodies

    oevaluating the cost effectiveness and risks of operational processes, activities, policies and systems

    oreporting to management on the existence and effectiveness of the system of internal controls

    oThe establishing audit objectives, and designing and implementing audit methodologies, processes and audit report criteria

41. The nominee’s position description is set out in Appendix 1 to the employment agreement.  In considering the nominee’s position description, the oral evidence provided to the Tribunal and the competency matrix of the nominee provided to the Tribunal, the Tribunal is satisfied the tasks of the nominee position correspond to the occupation of External Auditor being an occupation specified in the relevant instrument.

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

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

    DECISION

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

    Glenn O’Brien
    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)     all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).