Galaxy Hair and Beauty Salon (Migration)

[2019] AATA 5146

Galaxy Hair and Beauty Salon (Migration) [2019] AATA 5146 (14 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Galaxy Hair and Beauty Salon

CASE NUMBER:  1724607

DIBP REFERENCE(S):  BCC2016/4190880 BCC2017/100970

MEMBER:Cathrine Burnett-Wake

DATE:14 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 August 2019 at 3:14pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – actively and lawfully operating – nominating business ceased operation – Australian Business Number (ABN) status – contingent on nominee’s visa status – future intention or business plan not provided for – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

CASES
Hope v The Council of the City of Bathurst (1980) 144 CLR 1
Puzey v Commissioner of Taxation (2003) 131 FCR 244

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 20 September 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 12 December 2016. 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy 5.19(3)(c)(i)(A)(II) because the applicant has not demonstrated that the nominated person has been employed in the position for a total period of at least 2 years while holding their last 457 visa.

5. Mr Roger Hassan the Director of AKY Pty Ltd trading as Galaxy Hair and Beauty Salon appeared before the Tribunal on 3 June 2019 to give evidence and present arguments.

6. The applicant was represented in relation to the review by their registered migration agent.

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 Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

9. On 26 March 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

10. That information being that AKY Pty Ltd trading as Galaxy Hair and Beauty Salon has ceased operation and is relevant to the review because it may indicate that Aky Pty Ltd trading as Galaxy Hair and Beauty Salon is not actively and lawfully operating a business in Australia as claimed. Additionally, it was also outlined to the applicant that this information is also relevant to the review because it may indicate that AKY Pty Ltd trading as Galaxy Hair and Beauty Salon is no longer operating and has closed, therefore does not have the financial means to employ the nominee in the nominated position for at least 2 years full time.

11. In response, the applicant provided a copy of the Record of Registration for Business Name ‘Galaxy Hair and Beauty Salon’, which shows the registration was issued on 1 April 2019.  An Australian Business Register extract for AKY Pty Ltd was also provided, which showed the ABN status was ‘active’ and ‘registered’.

12. Completed but unsigned BAS for 1 Jan 2016 to 31 March 2016 and 1 July 2017 until 30 September 2017 were provided. Also provided were internally generated profit and loss statements for the January 2016 until March 2016 and July 2017 to September 2017.

13. Other documents provided included tax assessment notices for the nominee for the 2017, 2016, 2015 financial years, and a selection of payslips for the nominee covering periods in 2016, 2017 and 2018.

    Status of the nominator: r.5.19(3)(b)

14. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

15. For nominations in both the Direct Entry and Temporary Residence Transition streams, it is a requirement that the nominator is actively and lawfully operating a business in Australia. The terms ‘business’ and ‘actively and lawfully’ are not further defined in the legislation.

    Evidence at hearing regarding status of nominator

16. At hearing Mr Hassan told the Tribunal that he had closed the salon in Trafalgar. He stated that he closed the business as he did not have a manager to look after it and he cannot personally, as he does not live in the area and is working in another salon. He further stated that the only way he can reopen the business is if the nominee can have her permanent residency as he had not been able to find any other person who was suitable.

17. The Tribunal raised its concerns with Mr Hassan that as the business had closed, it would not meet the requirements of ‘actively and lawfully’ operating a business. The Tribunal also raised concerns that if the business had closed it would not be able to employ the nominee on a full time basis for at least 2 years, which was another requirement.

18. The representative submitted that the business was actively and lawfully operating as it was still registered and that it can reopen again if the nominee was granted permanent residency and that the applicant can produce a business plan and evidence of funds to re-open the business.

19. The Tribunal gave the applicant additional time after the hearing to provide supporting documents and any submissions it wished to make to address the concerns raised and its ability to meet regulation 5.19(3) in its entirety.

    Post hearing evidence

20. On 18 June 2019, the Tribunal received the following documents from the applicant in support of the application:

    ·Commercial Tenancy application form, undated;

    ·Notice of Tax Assessment for the nominee for year ended 30 June 2015;

    ·Company tax return for 2016;

    ·Notice of Tax Assessment for the nominee for year ended 30 June 2016;

    ·Financial reports for year ended 30 June 2016;

    ·BAS for the period July to September 2017;

    ·Amended BAS for April to July 2015;

    ·Asia Pacific Education Consultants receipt for $1500 relating to training benchmark A, dated 17 May 2016;

    ·AKY Pty Ltd pay history for employees for 2014-2015;

    ·AKY Pty Ltd superannuation remittance report period 1 July 2014 to 30 June 2015;

    ·Profit and Loss statement for the year ended June 2016;

    ·ATO income tax account statement dated 1 July 2014 to 7 May 2015;

    ·ATO income tax account statement dated 1 July 2016 to 30 June 2017;

    ·BAS October 2017 to December 2017;

    ·Business Plan, undated;

    ·Statement of financial performance for year ended 2015;

    ·Notice of Tax Assessment for the nominee for year ended 30 June 2015;

    ·Bank account statement for AKY Ltd Pty with a closing balance of $473.26 as at 31 March 2018;

    ·BAS for the period July to September 2014;

    ·TAFE Queensland receipt for $1250 relating to training benchmark A, dated 10  May 2016;

    ·Angad Australian Institute of Technology Pty Ltd receipt for $700 relating to onsite training, dated  19 May 2016;

    ·TAFE Queensland receipt for $550 relating to training benchmark A, dated 25  May 2016;

    ·TAFE Queensland receipt for $1300 relating to training benchmark A, dated 2 June 2016;

    ·TAFE Queensland receipt for $1600 relating to training benchmark A, dated 5 December  2016;

    ·Email from Roger Hassan which states:

    Respected member, my case no is 1730805 and I attend my hearing on 3rd June . I am finding new shop because 2 weeks is not enough time to get shop at good location .we discussed in hearing to support kiranjeet to get her visa back. I am small business man. I am going to spend thousands of dollars and I want to sure she get her visa back if she didn’t get her visa back .Immigration will be responsible to cover my loss. Everyone do hard work to earn money so I am worried if she don’t get her visa back. My all money will go into drain . I can do contract with kiranjeet for another 2 years or more but again

    Question arise she get her visa back or not. My request is please consider our documents and give her visa back.

    Regard

    Roger Hassan

    Is the business operating lawfully?

21. Departmental policy and operational guidelines suggest that in determining whether a business is operating lawfully, regard should be had to whether the business and its activities are registered with the relevant authorities as required. Registration may involve registration for tax purposes with an Australian Business Number (ABN), registration with the Australian Securities and Investment Commission (i.e. an Australian Company Number (ACN) or an Australian Registered Body Number (ARBN)) and registration of a business / trading name.

22. The Record of Registration for Business Name ‘Galaxy Hair and Beauty Salon’ reflects the registration was issued on 1 April 2019.  Further, an Australian Business Register extract for AKY Pty Ltd was provided, which reflects the ABN status as ‘active’ and ‘registered’.

23. The Tribunal accepts on that evidence before it that the business is registered with the relevant authorities and therefore appears to be lawfully operating.

    Is the business operating actively?

24. It is not sufficient that a business is lawfully operating; it must also be actively operating.  A shelf company for example, would meet the former but not the latter requirement.

25. The question of whether someone is carrying on a business has been considered in the context of s.134 cancellations of certain business visas and the term ‘eligible business’, in turn drawing on judicial authority in other contexts, which may provide some guidance. For example, in Hope v The Council of the City of Bathurst (1980) 144 CLR 1 Mason J considered the term ‘business’ as used in the Local Government Act (NT) and held (at [14]) it denoted “activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis”.  A broader approach was taken by Hill and Carr JJ in Puzey v Commissioner of Taxation (2003) 131 FCR 244 (at [47] – [48]):

    In deciding whether or not a business is carried on, courts have pointed to what have been called in the United Kingdom the “badges of trade”, indicia which, while no one of them will be determinative of whether a business is carried on, collectively will demonstrate a business.  These include the profit motive (although a non-profit company may still carry on a business), acting in a business-like way (although many businesses may be found which operate in a non business-like way), the keeping of books of account and records (although the fact that there are none will not necessitate the conclusion that a business is not carried on), and repetition (although a fixed term project may still be a business). 

26. The determination on whether the business is actively and lawfully operating a business is a question of fact.

27. The Tribunal has considered the documents provided pre and post hearing. However, the documents are not contemporary, and reflected past trading activities only. The most recent document to reflect trading activities was a bank account from 31 March 2018. All other supporting documents in relation to trading activities were dated prior to this date.

28. The Tribunal did consider the claim that the business should be considered actively and lawfully operating as it was still registered and that it can reopen again if the nominee was granted permanent residency. However, the regulations do not provide for such a scenario of a possible future intention or on the basis of an existence of a business plan. The regulation under consideration is clear, that the relevant standard business sponsor is actively and lawfully operating a business in Australia.

29. The Tribunal accepts that the business is registered, however, given Mr Hussan conceded at hearing the business was closed and the subsequent documents supplied to the Tribunal did not support there were any current “activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis”, the Tribunal finds that the business is not one that is actively operating.

30. As the applicant is not actively and lawfully operating a business in Australia the applicant is unable to satisfy r.5.19(3)(b)(ii).

31. As the Tribunal has found the applicant does not meet r.5.19(3)(b)(ii) it is not required to consider the rest of the requirements as set out in r.5.19(3).

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

    DECISION

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

    Cathrine Burnett-Wake
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:         

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.