STP Melville Financial Services Pty Ltd (Migration)

STP Melville Financial Services Pty Ltd (Migration) [2019] AATA 2817 (27 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  STP Melville Financial Services Pty Ltd
CASE NUMBER:  1615722
DIBP REFERENCE(S):  BCC2015/3814890
MEMBER:Michelle East
DATE:27 May 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 27 May 2019 at 10:38am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Accountant (General) – term of employment – financial capacity to employ nominee at specified salary – genuine need – nature and size of business – evidence of seeking local resident to fill position – Regional Certification – advice provided by regional certifying body – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 Immigration on 8 September 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 11 December 2015. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the delegate was not satisfied that the nominee will be employed on a full-time basis in the position for at least 2 years.
The applicant appeared before the Tribunal on 23 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Pindoria, the nominated employee.
The applicant was represented in relation to the review by its registered migration agent.
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
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)
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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the prescribed fee. The applicant also provided a Certification Form dated 1 December 2015 to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act. Accordingly the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal had regard to the evidence before it, including the further documents provided by the applicant after lodging its application for review.
The applicant is a proprietary limited company registered since 23 February 2012. It has been trading as STP Melville Financial Services Pty Ltd. Mr Ashish Malik is the sole Director and Secretary of the company. He is also the sole shareholder.
The organisational chart demonstrates Mr Malik as the Director/Owner of the business. The business is divided into Accounting Services and Mortgage Services. The Accounting Service employs two full time accountants, both on bridging visas, one of which is the associated visa applicant to this nomination. The Mortgage Service is divided into three branches, being WA, Victoria and Sydney. The WA and Victoria branches all sub-contract mortgage brokers who are Australian Citizens and permanent residents. The Sydney branch is looking to employ a new broker before December 2019. Mr Malik’s oral evidence was that the Perth office is run by the nominated employee together with another nominated employee. Mr Malik lives in Melbourne but commutes regularly to Perth to assist the two accountants as well as deliver professional development training. During the peak tax season (July – September) an office administrator assists. The applicant provides a full range of tax and accounting services.
The Tribunal accepts that the business needs to employ a paid employee to work in the position under the nominator’s direct control. The tasks that the business needs the position to undertake are discussed in more detail below.
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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
Having considered the material before it, including the applicant’s financial statements, advertisements and business registration records, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
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.
There is no evidence before the Tribunal to indicate that the applicant’s business is involved in labour hire. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Accordingly, the requirement in r.5.19(4)(c) is met.
Term of employment of the visa holder: r.5.19(4)(d)
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.
It was the delegate’s view that the financial information before it was unable to satisfy this requirement. The applicant has provided additional information and updated financial reports to the Tribunal that indicate that the company does have the financial capacity to employ the nominee at the specified salary and the Tribunal accepts this evidence.
Based on this material the Tribunal is satisfied that the applicant has the financial capacity to maintain the nominee’s employment.
The applicant also provided a letter of support dated 2 April 2019 from an external accountant attesting to the financial viability of the business.
A fixed term contract for two years for the nominated employee dated 5 April 2016 was provided to the Tribunal. His salary has been included in the financial reports submitted.
The applicant provided a detailed account of the structure of his businesses. He has opened another office in Melbourne and is now living there to manage that office. The nominated employee has been central to the operations of the WA business and has assisted the Director in expanding his business. The Tribunal notes the conduct between the applicant and the nominated employee at the hearing. It is clear they have a close working relationship that is reflected in their interactions.
The Tribunal has also been provided with an Employment Agreement for Mr Pindoria dated 7 December 2017 as a full time accountant commencing on ‘Appropriate Visa grant’ for a period of 4 years with further extension. An extension beyond 2 years is not expressly excluded.
The nominee’s evidence at hearing was that he had been employed and working in the business from that time. He said he had received all entitlements he was due in a timely manner.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
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.
The Tribunal has had regard to the terms and conditions of employment as set out in the employment contract. The contract provides for the nominee’s entitlements and indicates that the base salary will be $55,000 plus superannuation.
The applicant does not employ any Australia citizens or permanent residents to perform equivalent work as the nominated worker. The Tribunal accepts that the general terms and conditions set out in the employment contract between the applicant and the nominee are consistent with those set out in the Fair Work Ombudsman’s National Employment Standards (NES).
The Tribunal accepts that there is no applicable Award for the occupation of Accountant, so has had regard to a range of sources to determine whether the terms of the nominee’s employment conditions are no less favourable than those that would be offered to an equivalent Australian employee.
The Tribunal has consulted a range of sources of information, including the Payscale website (accessed 13 May 2019) which indicates that an Accountant in Australia earns an average salary of $56,112 per year with the salary range being from $41,260 - $81,631.
The Tribunal is satisfied that the nominee’s salary is within the salary range of what an equivalent Australian employee would be paid, albeit at the lower end of the salary scale for an Accountant in Australia.
The Tribunal is accordingly satisfied that the salary amount and the terms and conditions paid to the nominee are no less favourable than those that would be provided to an Australian citizen or permanent resident performing the same work in the same place in Western Australia.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
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.
There is no evidence before the Tribunal of any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
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.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
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)
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, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and 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.
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows.
Location of the position and the business
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(6) provides that ‘regional Australia’ is defined by the legislative instrument.
The Tribunal has considered the current legislative instrument (IMMI 18/037), however Schedule 3 of IMMI 18/037 states that it only applies to applications lodged on or after 8 March 2018. The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059).
Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application. That legislative instrument is IMMI 13/049.
In this case the position is located in Melville and the postcode is 6156. At the time of the application this location/postcode was considered regional Australia as per Schedule B of IMMI 13/049. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(5)(h)(ii)(A) and (E) are met.
Genuine need for the paid position which cannot be filled by an Australian citizen or an Australian permanent resident.
Subparagraph 5.19(4)(h)(ii)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account the evidence provided to the Tribunal regarding the nature and size of the business and the explanation as to why the nominator requires the services of the nominee as an accountant in his business. The Tribunal has had regard to the Director’s statement submitted to the Tribunal as well as his oral evidence.
The Tribunal was provided with evidence of one SEEK ad dated 16 March 2016 for an accountant. The Tribunal questioned the applicant what efforts they had made to find a suitably qualified and experienced staff member to fill the nominated position on a long term basis. The Tribunal is satisfied the applicant took adequate steps to do so.
The Tribunal also takes into account the opinion of the regional certifying body, Skilled Migration WA dated 13 May 2016 advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.
The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(h)(ii)(B) and (C) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument. The applicable instrument specified for this purpose is 15/083. The application is for an Accountant (General) ANZSCO Code 221111. This occupation is listed in Schedule A of the instrument. The occupation Accountant is a skill level 1 occupation and is defined in the ANZSCO dictionary as providing ‘services relating to financial reporting, taxation, auditing, insolvency, accounting information systems, budgeting, cost management, planning and decision-making by organisations and individuals; and provide advice on associated compliance and performance requirements to ensure statutory and strategic governance’.
Tasks include:
-    assisting in formulating budgetary and accounting policies
-    preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies
-    conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation
-    examining operating costs and organisations' income and expenditure
-    providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements
-    providing financial and taxation advice on business structures, plans and operations
-    preparing taxation returns for individuals and organisations
-    liaising with financial institutions and brokers to establish funds management arrangements
-    introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems
-    maintaining internal control systems
-    may appraise cash flow and financial risk of capital investment projects
An Accountant (General) is further defined as providing services relating to compliance-based financial reporting, auditing, insolvency and accounting information systems and advises on associated record-keeping requirements.
The Tribunal finds that after hearing the oral evidence of the applicant and the nominee and having regard to the documentary evidence provided to it that the tasks of the nominee do substantially correspond to those listed on the instrument and is therefore satisfied that Regulation 5.19(4)(h)(ii)(D) is met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice issued on 13 May 2016 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037 which only applies in respect of nomination applications made on or after 18 March 2018 and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 13/049.
On the basis of the advice set out in the Form 1404 the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e) and r.5.19(4)(h)(i)(B) and (C) of the Regulations. The regional certifying body states that:
-    There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
-    The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
-    The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.

Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 together with the other evidence provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met.
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Michelle East
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
(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).

[2019] AATA 2817

27 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies

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