CIPE Group Pty Ltd (Migration)

CIPE Group Pty Ltd (Migration) [2022] AATA 3021 (27 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  CIPE Group Pty Ltd
REPRESENTATIVE:  Mrs Natasha Prevot (MARN: 1575593)
CASE NUMBER:  1918789
HOME AFFAIRS REFERENCE(S):          BCC2018/554377
MEMBER:De-Anne Kelly
DATE:27 July 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 27 July 2022 at 11:53am
CATCHWORDS
MIGRATION–nomination – Direct Entry stream –genuine need to employ a paid employee to work in the position under the nominator’s direct control employee – no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 360
Migration Regulations 1994, rr 1.13, 5.19
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 Home Affairs on 9 July 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 1 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4)(h)(i)(AA) of the Regulations because there was insufficient evidence to demonstrate that the nominator had a genuine need to employ the person identified under subparagraph (a)(ii) as a paid employee to work in the position under the nominators direct control.
The Tribunal reviewed the documents provided and found that it could make a decision on the papers under s360 of the Migration Act (Cwth) 1958, so no hearing was required. Generally the Tribunal will conduct a hearing to determine that the legislative criteria are met contemporaneously however in this case the evidence is so comprehensive that it is reasonable to proceed to a decision.
The applicant was represented in relation to the review.
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 1 February 2018 the applicant trading as Epic Hair Designs lodged an Employer Nomination Scheme – subclass 186 visa in the Direct Entry Stream for the position of Hairdresser on $42,069 per annum to be employed in Moggill, Kenmore QLD 4069 in favour of Ms Emma Louise Willett.
The applicant owns and operates 15 hair salons around the greater Brisbane area and an organisation chart plus an agreement from a hair product supplier Kao which referenced the hair salons that are authorised to carry their products and named all these salons. They employ some 122 staff including Australian apprentices. Letter 9 March 2020 states that they are opening three new salons including one at the Gold Coast but are hindered by lack of skilled staff. They are putting on 10 apprentices according to a letter dated FY 2020.
Application is compliant: reg 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 an identified person as a paid employee to work in the position under their direct control.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 1 February 2018 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The applicant provided evidence in the form of payslips from June 2019 that demonstrate that the nominee has been working full time for the applicant.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Ms Emma Louise Willett was identified in the nomination application and has been working for close to three (3) years which indicates there is a genuine need for the position.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
ASIC and ABN registrations were provided with financial statements to FY 2021 and BAS statements for FY 2022. This demonstrates that the business is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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 that the business labour hires and bearing in mind the dearth of skilled hairdressers it is unlikely the owner would labour hire his staff.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 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.
A letter 4 March 2020 from the accountant advises that the business has a turnover in FY 2019 of $8,858,517 with a gross payroll of $4,589,675. The profit for that year before tax was $371,768. The total assets of the company are $2,277,183 for a net equity of $141,849.
Financial statements and tax returns show the following results.

2021 2020 2019

Revenue     12,948,042 10,402,876      8,858,517

Wages      6,349,211    5,432,297      4,589,675

Expenses     10,334,107    8,719,925      7,542,649

Profit      2,355,093    1,802,843         349,283

BAS statements for FY 2022 show the following strong sales trend.

BAS Sales

Q1 2022          3,505,526

Q2 2022       3,962,377

Q3 2022       3,420,982

A new employment agreement is dated 7 June 2019 and does not expressly exclude the possibility of an open-ended contract.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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.
There is an award for this industry being the Hair and Beauty Industry Award 2020. On 14 February 2022 the company upgraded the nominee’s position to Co-Manager with a commensurate increase in hourly pay rate to $25.48 per hour.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information 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: reg 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.
The Tribunal can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 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 in a legislative instrument, 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 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.
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
The applicant can choose to meet either r.5.19(4)(h)(i) or (ii) and has chosen to meet the former.
Tasks to be performed – reg. 5.19(4)(h)(i)(A).
The Tribunal has considered the job description and numerous advertisements for positions and finds that the tasks to be performed in the position will be performed in Brisbane Australia and correspond to the tasks as shown below of an occupation specified by the Minister in an instrument in writing being hairdresser.
Accordingly, r. 5.19(4)(h)(i)(A) is met.
Genuine need to employ – reg. 5.19(4)(h)(i)(AA).
The Tribunal has considered the evidence given by the applicant of the profits made during FY2019 to FY 2022 which was impacted by COVID-19 and also the fact that the nominee has been working full time since January 2018 in the business and considers that 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 of Hairdresser under the nominators direct control.
Accordingly, r. 5.19(4)(h)(i)(AA) is met.
The occupation is applicable to the nominee – reg. 5.19(4)(h)(i)(AAA).
The nominee has a positive skills assessment from VETASSESS and a Certificate III in hairdressing as well a Diploma and has achieved a UK NVQ Level 2 in Hairdressing and ran her own specialist bridal hair design business in France since 2011. She is a fully accredited Bridal Hairstylist and contributed to the Global Wedding Trend Report for 2018.
Accordingly, r.5.19(4)(h)(i)(AAA) is met.
Training requirements – reg. 5.19(4)(h)(i)(B)(I)
An extract from the website shows at least nine apprentices employed by the salons. Extensive training is provided by Matters in Gray Training. The Tribunal considers that employers who invest in apprentices are making a commendable contribution to upskilling and providing career opportunities to young Australians, so the expenditure certainly complies with the instrument and Benchmark B in IMMI 17/045 and even if it fell short the Tribunal is of the view that a commitment to apprentices is so commendable that it would constitute an exemption such the regulation is met.
Accordingly, reg.5.19(4)(h)(i)(B)(I) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
De-Anne Kelly
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 an identified person, as 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).

[2022] AATA 3021

27 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

2021	2020	2019
Revenue	12,948,042	10,402,876	8,858,517
Wages	6,349,211	5,432,297	4,589,675
Expenses	10,334,107	8,719,925	7,542,649
Profit	2,355,093	1,802,843	349,283