Elegant Beauty & Brows Noosa Pty Ltd (Migration)

[2023] AATA 201

Elegant Beauty & Brows Noosa Pty Ltd (Migration) [2023] AATA 201 (25 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Elegant Beauty & Brows Noosa Pty Ltd

REPRESENTATIVE:  Ms Nishta Ramnoruth

CASE NUMBER:  1921140

HOME AFFAIRS REFERENCE(S):  BCC2018/874467

MEMBER:Ian Berry

DATE:25 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 25 January 2023 at 9:06am

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – salon manager – application is compliant –– genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no adverse information – position associated with the nominated occupation is genuine –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
Migration Regulations 1994, rr 5.37, 5.19

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 Home Affairs on 18 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).

2. The applicant applied for approval on 23 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because the applicant did not provide enough information particularly concerning the financial viability of the business.

5. The applicant appeared before the Tribunal on 24 November 2022 to give evidence and present arguments. The Tribunal received oral evidence from the director and manager Mr E Powvalla. 

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. The Tribunal exercised its discretion to hold the hearing by video conference. During the COVID-19 pandemic, special circumstances exist for the video conference hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by video conference achieved this end.

8. 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

9. 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.

   The application is compliant: reg 5.19(4)(a)

10. 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.

11. The information before the Tribunal confirms that the application was made on the appropriate Internet form.  It included a written certification stating that the nominator has not engaged in conduct in relation to the nominated that contravenes sec 245AR(1).  The nomination identified the need to employ a salon manager (ANZSCO 142114), as a paid employee to work in the identified position under the nominator’s direct control

12. Accordingly, the requirement in reg 5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

13. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.  The applicant provided the necessary registrations and taxation information with details of employees.  The Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia and that it does so directly.

14. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour-hire: reg 5.19(4)(c)

15. 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. 

16. There is no evidence of the applicant operating a business which has an activity including labour hire to unrelated businesses.  The nominated position of salon manager is within the business activities and the nominator in that to the business is a beauty salon.

17. Accordingly, the requirement in reg 5.19(4)(c) is met.

    Term of employment of the visa holder: reg 5.19(4)(d)

18. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

19. At her hearing, the identified nominee Ms Navneet Kaur stated she commenced employment with the applicant in February 2018.  The applicant provided the employment contract made 19 September 2022 with its beauty salon manager.  This employment contract expressly states that her position will be available for at least the next two years.

20. Accordingly, the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

21. 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.

22. Currently the applicant’s nominee Mr Navneet Kaur as the salon manager receives $65,000 annually, not including the compulsory superannuation.  The terms and conditions of her employment are in accordance with the award covering beauticians: Hair and Beauty Industry Award 2020 [MA000005].  The applicant’s director Mr Powvalla gave evidence that while a salon manager is not covered by the award, she is generally paid at the highest level.  Evidence was provided to illustrate that to managers receive the amount paid to the identified nominee.  The Tribunal is satisfied that to the conditions and salary paid by the applicant is no less favourable than that which would be paid to an Australian citizen or Australian permanent resident performing equivalent work at the same workplace at the same location.

23. Accordingly, the requirements of reg 5.19(4)(e) are met.

    No adverse information known to Immigration: reg 5.19(4)(f)

24. 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.

25. There is no evidence before the Tribunal to indicate that there was adverse information against the applicant, or a person associated with the applicant.

26. Accordingly, the requirements of reg 5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

27. 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.

28. Mr Powvalla’s evidence is that he owns several beauty salons throughout Queensland and New South Wales, of which he has the controlling interest.  There is no evidence of the applicant or his associated corporations having an unsatisfactory record of compliance with the Commonwealth or any state or territory within the Commonwealth.

29. Accordingly, the requirements of reg 5.19(4)(g) are met.Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

30. Regulation 5.19(4)(h) contains a several 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 (see legislative instrument IMMI 18/005), 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 nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

31. The tasks of the identified position of salon manager will be performed in Australia in a regional area and correspond substantially with the tasks set out in the ANZSCO position description.  There is a genuine need for the applicant to employ the identified nominee as a paid employee to work in the position under the applicant’s direct control.  Information provided by the applicant’s director that to she has several directorships concerning the business name Elegant Beauty & Brows.  The list provided by the director aggregates to 20 salons in New South Wales and Queensland.

32. There is no requirement for the training as it is in a regional area.  The evidence provided by the applicant is twofold.  Firstly, an advertisement was placed on a government-facilitated website to which the candidates applied (including the identified nominee) who appeared to be the most experienced and qualified.  Secondly, the applicant provided to the Tribunal the Form 1404 provided by the Chamber of Commerce & Industry Queensland (the Certifying Body), Sunshine Coast in Wide Bay Region.  The form concluded that to the Certifying Body representative was satisfied that there was a need for a paid employee in the nominated position and the applicant’s business; that the nominated position cannot be filled by either an Australian citizen or Australian permanent resident who is living the same local area as the nominated position and lastly that the terms and conditions of employment 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 who is performing equivalent work in the same workplace as at the same location.

33. Accordingly, the requirements of reg 5.19(4)(h) are met.

34. 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

35. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Ian Berry
    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).