Fame Hair & Beauty Saloon Pty Ltd (Migration)

[2019] AATA 945

Fame Hair & Beauty Saloon Pty Ltd (Migration) [2019] AATA 945 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Fame Hair & Beauty Saloon Pty Ltd

CASE NUMBER:  1712059

DIBP REFERENCE(S):  BCC2017/437364

MEMBER:Alan McMurran

DATE:21 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 March 2019 at 4:27pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Hairdresser – nomination application not accompanied by any supporting documentation – no evidence of employment of the nominee – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 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 Immigration on 22 May 2017 to reject 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 2 February 2017. 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 the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because the nominator did not supply information to support the application. The only information provided was that contained in the application itself.

5. The applicant declined to appear before the Tribunal to give evidence and present arguments and requested the Tribunal to deal with the matter on the information before it. This included a submission sent by email on 23 October 2018, in response to an information request from the Tribunal.  

6. The applicant was not represented in relation to the review, its registered migration agent having withdrawn before the matter was decided.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Background

9. The nomination application was sought for the position of Hairdresser for Ms Shamim Ara as nominee. At the time of application on 2 February 2017, the nominator was carrying on business at a salon in Scone, in regional NSW, known as Fame Hair and Beauty Saloon.

10. The application was filed online and nominated the firm Parish Patience as the relevant migration agent. The application was not accompanied by any documentation you might anticipate, such as evidence of an employment contract with the nominee, and the financial performance of the business to illustrate its capacity to continue to employ and pay the nominee for a period of at least two years.

11. The Department wrote to the applicant on 2 February 2017 noting receipt of the application and further “You should provide us with all the information you feel is relevant”. The nominator provided nothing further.

12. On 22 May 2017, the Department in its decision noted, “the nominator has not provided any additional information to support the application, namely, there have been no contracts provided to show the intended salary for the nominee Ms Shamam Ara .Nor has there been any evidence of the business actively and lawfully operating.”

13. Given the lack of supporting evidence, the delegate had little alternative but to refuse the application.

14. When this review was lodged, on 7 June 2017, no additional information was provided. The Tribunal sent a letter the same day inviting “material or written arguments for us to consider”.

15. On 9 October 2018, the Tribunal wrote to the applicant setting out the requirements of the regulation 5.19(4) and inviting the applicant to provide current information to meet those requirements, by no later than 23 October 2018. The Tribunal’s request was also sent to the nominator’s representative by email, the same day. Two days later on 11 October 2018, the representative sent an email stating, “We have ceased representation for the above client and, client has confirmed their instructions.”

16. On 11 October, the Tribunal again wrote to the nominator inviting the applicant to complete a form for appointment of another representative or authorised recipient and change of contact details.

17. On 23 October 2018, the Tribunal received an email from Rubel Shab, described as Saloon Manager, advising:

    “I have been authorised by the owner of the business to send some of the requested documents by the Department.

    Please find attached requested some documents which may assist you in the case. We will not be attending the hearing due to some work commitments but this is what we can supply at this point in time.”(my emphasis)

18. As at this date, the Tribunal had not invited the applicant to a hearing and no date had been scheduled, as the Tribunal had been awaiting the applicant’s response to the information request. Had no response been received, there would have no longer been any entitlement to a hearing.

19. The documents supplied by the applicant on 23 October 2018 were:

    ·Current ASIC ABN details

    ·Business Plan (undated) for Fame Hair & Beauty Saloon

    ·Commercial Lease for 3 years from 10 May 2012 – 9 May 2015

    ·ASIC company extract dated 16 June 2017

    ·Financial statements for period ending 30 June 2017

20. On 15 November 2018, a Tribunal officer contacted a director of the applicant, Ms Farhana  Afroz, to inquire whether consequent upon the applicant’s email of 23 October, the applicant wanted the Tribunal to make a decision on the papers. The director responded positively to the suggestion stating, “We do not need any staff now as the saloon has been closed”.

21. The Tribunal has received no further information or requests from the applicant and has elected to treat the director’s response to the Tribunal officer as a request to decide the matter without a hearing, and on the information presently available. The Tribunal wrote to the applicant on 29 January 2019, sending the applicant a Withdrawal form, noting the director’s comment that the saloon had been closed. The Tribunal requested a response as soon as possible. A check of the Tribunal files shows that nothing further has been received  and there was no response.

    Consideration

22. The regulation prescribes the requirements for the granting of an approval for the nomination. A copy of the regulation is attached to this decision. The Tribunal notes that those requirements were sent to the applicant with the Tribunal’s letter of 9 October 2018. The applicant was also alerted by the delegate’s’ decision that insufficient supporting information had been provided with the application.

23. Regulation 5.19(4)(d) requires among other things, that the nominee will be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment will not expressly exclude the possibility of an extension.

24. The nominee for the position is required to be party to a written contract of employment as evidence of the role, the period of employment, the minimum length of time (2 years) on a full-time basis. The contract must also not expressly exclude the possibility of the contract extending beyond two years.

25. Further, the financial evidence provided needs to satisfy the Tribunal that the business operation of the nominee will support the employment of the nominee for the minimum period and that the business will continue to operate while the nominee is employed for at least two years.

26. The Tribunal notes the oral evidence from the director that the business has “closed”. The Tribunal has no reason not to accept that statement. When considered alongside the lack of supporting documentation, with no current employment agreement produced for the nominee, the request from the applicant not to attend a hearing and resolve the matter on the information as is, and the withdrawal of the representative, the Tribunal is satisfied that the applicant is unable to meet the requirements of the regulation.

27. The Tribunal is satisfied that there is no evidence of employment of the nominee by the applicant. The Tribunal also finds that the applicant although still registered under the existing business name, has ceased to trade at the location for which the nomination was proposed.

28. For these reasons the applicant is unable to meet the requirements in r.5.19 (4)(d) and (e) and the criteria for approval are not met.

29. In those circumstances, it is not necessary for the Tribunal to consider the application further.

30. 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

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

    Alan McMurran
    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 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;

    (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 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).