Trinh (Migration)

[2018] AATA 2030

Trinh (Migration) [2018] AATA 2030 (15 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tuan Vu Trinh
Ms Ngoc Ha Anh Le

CASE NUMBER:  1702529

DIBP REFERENCE(S):  BCC2016/220727

MEMBER:Warren Stooke

DATE:15 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application(s) for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.233 of Schedule 2 to the Regulations.

Statement made on 15 May 2018 at 2:48pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry Nomination stream – Finance Manager – Employment will be provided – Nomination approved – Skills and qualifications met – Decision under review remitted


LEGISLATION
Migration Act 1958, ss 65. 359, 360
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.212, 187.233, 187.234

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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 January 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Finance Manager with Resiak Pty Ltd. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nominated position had not been approved.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is the requirement for the nominated position of Finance Manager at Resiak Pty Ltd has been approved by the Tribunal for remittal to the Department [Tribunal Case 1621892].

   Employment will be provided

8. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to the related nomination application.

9. The nominator gave evidence to the Tribunal [Case 1621892] regarding the nature and an overview of the company’s activities, which included the following basic information:

   a.The business is a trucking operation that operates out of Kialla and Bendigo and is primarily involved in the transport of stock feed and has been in operation for 10 years;

   b.The transport fleet consists of 8 vehicles in total, including six 26 tonne and two 36 tonne B-Doubles and the fleet has 8 drivers, together with the owner, as the manager;

   c.The owner currently performs both the in-yard supervision and the financial accounting/invoicing for the business and explained to the Tribunal that the future development of the business will require the engagement of a Finance Manager to manage all the financial accounting for the business and the commercial liaisons with customers and suppliers;

   d.The owner recognises that it is not possible to continue to operate the business without office based intellectual support given that it is his intention to focus more on the expansion of the business, through greater business development analysis, which will require a financially literate manager;

   e.The nominator has proposed the position of Finance Manager, who will prepare the payroll; superannuation returns; fuel reconciliation and rebate applications; the preparation of the BAS (including accounting inputs to facilitate calculations); supplier negotiations; financial accounts and returns, (including FBT); replacement and depreciation account management;

   f.The business requires a university graduate with accounting qualifications, including tax policy and financial awareness;

10. The nominator provided evidence that the nominee will be engaged on a common law contract [Department File 1621892 – Folio 80] that is underpinned by the terms of the National Employment Standards in the Fair Work Act 2009, which is the relevant safety net regarding the minimum conditions of employment required under the provisions of the Fair Work Act 2009. As a staff management position, the Tribunal is satisfied that there is no appropriate award to cover this discrete position providing service to an employer engaged in the Transport and Agricultural Industry.

11. Further, evidence was given that the nominee is committed to work for Resiak Pty Ltd into the future and that the position will continue to be available for that purpose beyond the two years, particularly given the scarcity of professionals with the requisite qualifications in country Victoria. The nominee has committed to work for the nominator for the foreseeable future and beyond 2 years.

12. Therefore, cl.187.212 is met.

    Nomination of a position

13. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

15. The nominator gave evidence to the Tribunal [Case 1621892] that the nominated employee will work in the business for more than 2 years and that the nominee is highly qualified through his formal training. The nominator regarded the nominee as excellent and as having the overall skills to assist in the day to day management of the business and financial analysis associated with future business opportunities.

16. The nominator provided the Tribunal [Case 1621892] with a copy of the RSMS - Regional Certifying Body advice dated 18 May 2016 pertaining to the position of Finance Manager and advising a nominated salary of $55,000 issued by Regional Development Victoria Shepparton.

17. The Tribunal is satisfied that a salary of $55,000 per annum, plus superannuation for 38 hours per week, as prescribed in the contract [Case 1621892 Department File – Folio 80], meets the requirements of the relevant Fair Work Act 2009.

18. Therefore, cl.187.233 is met.

    Skills and qualifications

19. For applicants in the Direct Entry stream, cl.187.234 require that at the time of application:

    ·     the applicant is in a specified class of persons (exempt persons), or

    ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

    ·    if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

20. 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 18/043), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met. For the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

21. The nominator confirmed to the Tribunal [Case 1621892] that the business would employ the nominee for more than 2 years. The nominee, who is currently working in Melbourne has an EILTS score of 6.5 and a Bridging Visa with an unlimited work right.

22. The nominator provided evidence of the scope of duties to be undertaken by the incumbent in the nominated position [Tribunal 1621892 Folio 29], which includes the application of the nominee’s skills and competencies obtained through studies at La Trobe University in the Master of Financial Analysis and Master of International Business courses, together with formal on-the-job experience of two years. This was supported by formal evidence from the nominator, who confirmed his qualifications, experience and described his duties in detail, as set out above . The incumbent will be under the direct control of the nominator, as the Finance Manager. Further, the Tribunal is satisfied that the scope of duties to be performed by the nominee are consistent with ANZSCO 132211. In this context, the following position descriptions attests to the compliance with ANZSCO 132211 for the position of Finance Manager:

    “The Finance Manager will be responsible for developing, implementing, monitoring and reviewing our company's budgetary and accounting policies. They will also be responsible for providing financial information for evaluating our business performance and advising on current and future business and investment strategies.

    MAIN DUTIES

    As a Finance Manager, you will be

    ·     Preparing, practicing, overseeing and assessing budgetary and accounting schemes, standards and plans by discussing with Manager, Accounts and other managers

    ·     Monitoring the effectiveness of the company's accounting system

    ·     Developing expenditure and financial management policies for our company

    ·     Preparing financial reports, BAS and company tax returns in line with relevant statutory provisions

    ·     Providing forecasts, budgetary and financial projections

    ·     Managing capital funds

    ·     Providing advice on appropriate company's investments

    ·     Coordinating company payroll including staff payments, tax withholding and superannuation payments

    ·     Providing strategic advice on financial planning and risk management, manage company liabilities and liaise with financial institutions over credit lines

    ·     Identifying cost savings strategies and implementing a system to improve efficiencies

    ·     Planning and implementing strategies to increase profit

    ·     Coordinating the implementation of ongoing monitoring/ management of a company's wide electronic accounting/ financial management system

    ·     Adhering to the financial legislation and standards

    Skills/ Qualifications required

    ·     Bachelor Degree or higher qualification (Finance or related field); or

    ·     Relevant experience (at least five years) in a similar position

    ·     Proactive nature

    ·     Ability to produce accurate financial information

    ·     Ambitious

    ·     Good communication skills

    ·     Good organizational skills

    ·     Effective writing skills

    ·     Ability to work independently”

    ·The Tribunal is satisfied that the applicant meets the requirements of a Finance Manager as prescribed in ANZSCO 132211, as follows:

    UNIT GROUP 1322 FINANCE MANAGERS

    FINANCE MANAGERS plan, organise, direct, control and coordinate the financial and accounting activities within organisations.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Tasks Include:

    odetermining, implementing, monitoring, reviewing and evaluating budgetary and accounting strategies, policies and plans in consultation with other Managers

    oproviding financial information and interpreting the implications for business performance and funding needs

    ocoordinating the development, implementation and monitoring of accounting systems

    odirecting the preparation of financial reports that summarise and forecast the organisation's financial position such as income statements, balance sheets and analyses of future earnings and income

    oassessing capital finance proposals and the financial status of operational projects

    oadvising on investment strategies, sources of funds and the distribution of earnings

    odelivering long range profit forecasts, budgeting and financial reporting

    oensuring compliance with financial legislation and standards

    
    Occupation:

    132211 Finance Manager

    
    Therefore, cl.187.234 is met.

23. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.

    The Tribunal is satisfied that the second applicant meets the requirements of cl.187.311 and cl.187.312

    DECISION

24. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.233 of Schedule 2 to the Regulations;

    Warren Stooke AM
    Member