Tribunal: Member Wan Shum
L E Dias Electrical Contracting Pty Ltd (the nominating business) applied for approval of a nomination of an accountant for a Subclass 457 visa, but a delegate of the Minister for Immigration and Border Protection refused the nomination because they were not satisfied that the position was that of an Accountant. The applicant applied to the AAT for a review of this decision.
The criteria for an approval of a nomination of an occupation for a subclass 457 visa includes the requirement that the Minister (or a delegate) is satisfied that the nominated occupation is genuine.[1] The nominating business was an electrical contracting company and they claimed that they needed their own accountant to analyse the big picture because the company’s revenue had grown substantially in the last few years. The business also claimed they needed the accountant for a number of strategic, tax preparation and financial management tasks.
The delegate who considered the application did not consider that the nominated position was that of an Accountant and that the nominee would carry out the full breadth of duties of an Accountant.
The AAT was also concerned whether the business actually required a full time accountant. In reaching its decision, the AAT took into account the nature of the business, which was a small business that supplied electrical and installation works. According to the financial statements provided, the recent expenditure on accounting and bookkeeping fees was around $23,000. This did not appear to be a significant cost for a business with a turnover of around $2.4 million and the salary offered in the employment contract was almost three times that expense. While it was claimed before the Department that an accountant was needed for strategic tasks, no details or supporting evidence were provided. The AAT was doubtful that any of these activities would occur.
The nominating business had claimed that an in-house accountant was required because of the growth of the business, but the AAT Was concerned about the reliability of the financial statements as there were several discrepancies between the documents provided to the Department and the AAT. It also appeared that the profit and income was inflated for the purposes of the nomination, and then reduced for the purposes of the tax return. The AAT found that even if there was an increase in revenue over the last three years, the increase alone did not justify a need for an accountant for a business of this kind.
The AAT also noted that while a job description listed various tasks that are largely consistent with those undertaken by an accountant, the preamble for the employment agreement between the nominating business and the nominee stated that the business “operates predominantly within the accounting and taxation service industry providing professional and accurate services to its clients in a timely manner at the best affordable rates”. As the organisation charts of the business showed that most of the positions were that of tradesmen and apprentices and there was no evidence that the business was changing its focus from electrical and installation works, the AAT was concerned about the genuineness of the position.
Taking all the evidence into account, the AAT was not satisfied that the nominated position was genuine and that the nominating business met the criteria for the nomination.
The AAT affirmed the decision not to approve the nomination.
Read the full written decision on AustLII.