1506066 (Migration)

[2015] AATA 3377

1506066 (Migration) [2015] AATA 3377 (10 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Bhuriwale Pty Ltd

CASE NUMBER:  1506066

DIBP REFERENCE(S):  BCC2013/904097

MEMBER:Denise Connolly

DATE:10 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 10 September 2015 at 11:48am

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 on 2 October 2013 to refuse 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 24 June 2013. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream. The nominated position is Hair Beauty Salon Manager, occupation Hair or Beauty Salon Manager ANZSCO 142114. When making the application the applicant provided a letter dated 30 August 2013, from Regional Development Australia, advising that the business does not meet the requirements of r.5.19(4) as local knowledge of the region does not indicate that the occupation is in shortage.

4. Regulation 5.19(4)(b)(i) requires the applicant to demonstrate that the business is actively and lawfully operating a business in Australia. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(b)(i) of the Regulations.

5. On 28 January 2015 the Tribunal (differently constituted) affirmed the Department’s decision to refuse the nomination and found that as Regional Development Australia, Central Coast Inc had given advice that the nomination does not satisfy the requirements of r.5.19(4)(h)(ii)(B) and (C). That Tribunal found therefore that the applicant did not satisfy r.5.19(4)(h)(ii)(F) and hence r.5.19(4)(h)(ii) as a whole.

6. On 25 February 2015 the applicant lodged an application for judicial review with the Federal Circuit Court. On 25 May 2015 the Court ordered by consent that the decision of the previously constituted Tribunal was affected by jurisdictional error in that it misconstrued the effect of advice provided by a prescribed body pursuant to r.5.19(4)(h)(ii)(F) and failed to consider evidence capable of contradicting that advice. This Tribunal is now taking a fresh look at this case.

7. On 25 June 2015 the applicant provided evidence to the Tribunal that the Directorship of the business has changed and that Mr Harvinder Singh Manani is now appointed as Director.

8. Mr Harvinder Singh Manani appeared, Director, Bhuriwale Pty Ltd, on behalf of the applicant, before the Tribunal on 4 September 2015 to give evidence and present arguments.

9. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

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 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.

11.  The applicant provided to the Department various documents including the following:

• Nomination application -  Direct Entry

  • for location – San Remo- 2262
  • $52,000 pa salary
  • Hair Beauty Salon Manager ANZSCO 142114

• ABN lookup, BHURIWALE PTY LTD

• ASIC, business name registration, Entranced Hair & Beauty, 25 June 2013

• ASIC, Certificate of Registration, BHURIWALE PTY LTD, 19 March 2013

• Lease, shop, San Remo, commencing 17 May 2013, 3 year term

• Jobsearch advertisement for hairdressing salon manager, 21 June 2013

• Entranced Hair & Beauty Business Plan, 31 May 2013 - nominated person is the employee director (and husband)

• Commonwealth Bank account confirmation, BHURIWALE PTY LTD, 11 June 2013

• Regional Development Australia, letter 30 August 2013, advises that the business does not meet the requirements as the occupation is not on shortage list

• Form 1404, August 2013 - does NOT satisfy the relevant requirements

12.  Before the hearing with the previously constituted Tribunal the applicant provided the following evidence:

• Telstra bill, due 6 January 2015

• AGL account, account overdue, May 2014

• Sensis listing invoice, 30 August 2014

• Vivorah Invoices

• ASIC fee

• ANZ statement, December 2014

• BAS statements

• Wyong Shire Council, 20 May 2014, Inspection Form

13. Prior to the hearing on 4 September 2015, this Tribunal wrote to the applicant under s.359(2) of the Act inviting the applicant to provide information demonstrating the requirements of r.5.19(4) are met.

14.  The applicant provided evidence that the nominee is currently employed by the business as the Manager on a full-time basis having commenced working casually in 2013.  The applicant provided an organisational chart indicating the nominee is the full-time manager, the business employs a casual hairdresser and a permanent hairdresser, Emily, and it has vacancies for a full-time hairdresser and an apprentice.

15.  The applicant provided a copy of the contract with the nominee signed on 24 June 2015 setting out the terms and conditions including that the nominee will be paid a base salary of $55,000 per annum. The applicant also provided evidence of various job advertisements for salon managers indicating annual income of between $50,000 and $60,000 for full time employment, and evidence from Payscale Human Capital website indicating the national median salary for a Hair Salon and Spa Manager is $53,183.

16.  The applicant provided Financial Statements for the 2014 and 2015 financial years and BAS statements for the 2015 financial year.  The financial statement for the 2014 financial year shows that the business ran at a loss.

17.  The financial statement for the 2015 financial year shows the following:

a.the business received income of $68,281

b.it paid $12,000 in rent

c.it paid $50,450 in wages

d.it had a profit after income tax of $1,454.

18.  The applicant’s 2015 Balance Sheet shows that the business has capital and reserves of $1,266, cash in hand of $8,248, and liabilities of $6,982.

19.  The applicant also provided the PAYG payment summaries for the employees. The nominee’s PAYG payment summary records that her gross income in 2015 was $18,100 and she received no other income, fringe benefits or payments. The hairdresser, Emily, was paid $19,656 in the 2015 financial year.  Superannuation statements were also provided.

20. At the hearing the Tribunal discussed with Mr Singh the requirement that the provisions of r.5.19(4) are met as set out in the s.359(2) letter. It drew attention, in particular, to the concern that the business does not appear to be in a financial position to provide the terms and conditions it proposes, set out in the contract indicating the applicant will be paid a base salary of $55,000 per annum.

21.  Mr Singh told the Tribunal that the nominee, Sarbjeet Kaur has been working full-time as the Salon Manager since the business commenced in about April 2013. He said the business employed her in the position, as Manager, because it could not find an Australian citizen or permanent resident to fill the position. The Tribunal raised its concern that the nominee has been working full-time in the position but the business only paid her $18,100 in the 2015 financial year. This is despite the terms of the contract indicating she would be paid much more, in line with the evidence from various job advertisements for salon managers indicating annual income of between $50,000 and $60,000 for full time employment.  He indicated that he also pays her rent at Hornsby which is $500 per week. The Tribunal noted that this payment does not appear to be recorded anywhere in the financial documentation or the contract. Mr Singh indicated that he might have forgotten to tell the accountant. The Tribunal raised its concern that this suggests the business has been making cash payments to the nominee, undeclared to the Australian Taxation Office. He then said the business does not always make that payment. He indicated it was up to the Tribunal to make the findings it considered appropriate.

22. The Tribunal questioned whether the business is in fact in a position to provide the terms and conditions set out the contract, including a base salary of $55,000 per year, given its strained financial circumstances. Mr Singh acknowledged ‘it’s going to be tough’. The Tribunal raised its concern that the requirements of r.5.19(4)(e) may not be met by the applicant, given its concern that the applicant may not be able to provide the terms and conditions set out in the contract. Mr Singh had no further evidence to give on the business’ financial situation and its capacity to meet the requirements of r.5.19(4).

Terms and conditions of employment: r.5.19(4)(e)

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

24.  The Tribunal has considered all of the evidence provided to the Department, and the written and oral evidence to the Tribunal.  Mr Singh told the Tribunal the business employs the nominee on a full-time basis in the position as the manager of the salon and has done so since about April 2013. The applicant has provided to the Tribunal a contract setting out the terms and conditions signed on 24 June 2015 stating the nominee is to be paid $55,000 per annum. The applicant previously provided evidence to the Department that from June 2013 she would be employed under terms including a base salary of $52,000.

25.  The Tribunal has considered the various job advertisements provided by the applicant for salon managers indicating annual income of between $50,000 and $60,000 for full time employment in Australia. Those advertisements include a position in regional Australia. The applicant also provided evidence from the website Payscale Human Capital which records that the national median salary for a Hair Salon and Spa Manager in Australia is $53,183. The Tribunal considers that this is reliable evidence about the terms and conditions that are provided, or would be provided, to an Australian citizen or permanent resident performing equivalent work. On the basis of the applicant’s evidence to the Tribunal it is satisfied the terms and conditions that would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location would include a  salary of between $50,000 and $60,000.

26.  The applicant has provided a contract signed in June 2015 purporting to be the terms and conditions under which the nominee will be employed. This includes a base salary of $55,000 per annum. However the Tribunal notes the nominee’s PAYG payment summary for the 2015 financial year indicates she was paid only $18,100 while working full-time in the position. Mr Singh stated that she was also paid $500 per week, or sometimes, in cash towards her rent. This is not reflected in the business’ financial documents including her PAYG payment summary, and the Tribunal is not persuaded by Mr Singh’s oral evidence that this might have been because he forgot to tell the accountant. If it is the case that the business has been paying the nominee cash payments towards rent, not declared as income, this raises concerns about the business’ compliance with Australia’s tax laws. In any case the Tribunal is not satisfied she is paid additional cash payments in the amount suggested given the business’ limited income.

27.  The business’ financial documentation indicates that the business is not in a position to pay the nominee a salary of $55,000. The business had income of only $68,281 in the 2015 financial year and it employs 2 other staff.  It had profit after tax of only $1,454. That was in the year that it paid its Manager, who was employed in the position, only $18,100. The 2015 Balance Sheet shows capital and reserves of only $1,266. There is no evidence before the Tribunal to suggest that its income has increased in this financial year or will increase in the future such that it can afford to pay the nominee the base salary proposed in the terms of the contract.

28. Having considered the applicant’s evidence regarding its financial situation the Tribunal is not satisfied the business is in a position to employ the nominee under the purported terms of the contract signed in June 2015. The applicant paid the nominee only $18,100 in the 2015 financial year for her employment in the position as the full-time manager. There is no evidence that the business’ financial circumstances will improve in the future such that it will be in a position to employ the nominee according to the terms and conditions set out in the contract, which includes a base salary of $55,000 per annum. The Tribunal is not satisfied the contract provided reflects the terms and conditions under which the nominee will be employed in the position as it is not satisfied the nominee will be paid a base salary of $55,000 per annum. Based on the applicant’s evidence it is of the view the base salary will be significantly less. The Tribunal is not satisfied the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location. It is not satisfied r.5.19(4)(e) is met.

29. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

DECISION

30.  The Tribunal affirms the decision under review to refuse the nomination.

Denise Connolly
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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;

   (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 at a skill level of ANZSCO skill level 1, 2 or 3;

   (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).