Hac Hoai Anh Salon Beauty & Massage Pty Ltd (Migration)

[2022] AATA 3986

Hac Hoai Anh Salon Beauty & Massage Pty Ltd (Migration) [2022] AATA 3986 (11 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hac Hoai Anh Salon Beauty & Massage Pty Ltd

REPRESENTATIVE:  Mr Robert Liu

CASE NUMBER:  1923780

HOME AFFAIRS REFERENCE(S):          BCC2018/258016

MEMBER:Ian Berry

DATE:11 November 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 11 November 2022 at 8:40am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – position cannot be filled by citizen or permanent resident – summary of recruitment advertising provided with application – no response to tribunal’s invitation to provide updated and current information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359(2), 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(e), (h)(ii)(C)

CASE
Hasran v MIAC [2010] FCAFC 40

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 8 August 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 16 January 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)(C) of the Regulations because the applicant did not make genuine attempts for local recruitment.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Invitation to provide information under section 359(2)

8. On 20 September 2022, the Tribunal wrote to the applicant pursuant to s 359(2) inviting it to provide current information addressing the relevant criteria under reg 5.19(2) and reg 5.19(4). The Tribunal is satisfied that the invitation was properly dispatched to the Mr Robert Liu, the applicant’s migration representative. The relevant parts of this Tribunal invitational letter is set out:

   I am writing on instruction from the Member conducting the review, about the application for review made by Hac Hoai Anh Salon Beauty & Massage Pty Ltd (“the applicant”) in respect of a decision to refuse their application for approval of a nominated position under reg 5.19 of the Migration Regulations 1994 (the Regulations).

   In order for the Tribunal to approve the business nomination, it must be satisfied that all of the requirements in reg 5.19 of the Migration Regulations 1994 (the Regulations) and section 140GB of the Act are met at the time of its decision.

   In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in reg 5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Direct Entry nomination stream, the relevant criteria are in rr. 5.19(2) and (4) of the regulations.

   The Tribunal now requires updated and current information addressing these criteria.  Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing.  We have given examples of the type of information you could provide:

   1.Information about the identity of any person authorised to speak and make decisions on behalf the applicant;

   ·If the applicant is a company or registered business, and ASIC company or business name extract ( the applicant is a company or registered business, current and historical information about its owners or officeholders’ registration details;

   ·An ASIC current and historical extract ( about the applicant directly operating an active and lawful business in Australia, including its financial circumstances;

   ·The applicant’s lodged tax returns for the last 2 full financial years, business activity statements that have been lodged with the ATO for the last 24 months and financial statements prepared in accordance with Australian accounting standards, including profit and loss statements and balance sheets, for the most recent 2 financial years.

   4.information about the applicant’s current organisational structure and where the nominated position sits in relation to that structure;

   ·An organisational structure chart that includes all the applicant’s current and proposed employees, their position title/duties and their immigration status (i.e. Australian citizen, permanent resident or temporary visa holder).

   5.Information about the roles and duties of the nominated position and how they correspond to the nominated occupation is position description in ANZSCO;

   ·Job descriptions, work samples, emails, correspondence and other

   ·examples of the daily tasks performed in the nominated position, and also the nominated occupation’s position description in ANZSCO (go to and type the nominated occupation’s 6 digit ANZSCO code number into the ‘Search’ function).

   6.information about the terms and conditions of employment in the nominated position, including whether they are more all those favourable than those provided for an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, and whether the nominee will be employed on a full-time basis for at least 2 years with terms and conditions not expressly excluded the possibility of extension;

   ·A current employment contract in respect of the nominee or letter of engagement that complies with the relevant awards for the nominated position (if any).

   7.If the nominated position is not located in regional Australia and the applicant has paid the non—regional position application fee, information about:

   (a)     the need to employ the nominee in the nominated position; and

   (b)     the applicant’s business operating for at least 12 months and its recent training expenditure; or

   (c)      the applicant’s business operating for less than 12 months and its plan for future training expenditure.

   ·Invoices or contracts for employee training, a training program that includes a course outline, attendance and identifies increased work competencies, all records of investment in certain industry training funds or recognised industry bodies.

   8.If the nominated position is located in regional Australia, information about:

   (a)     The need to employ the nominee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area; and

   (b)     whether a specified Regional Certifying Body located in the same State or Territory as the nominated position has provided advice that:

   (i)     the terms and conditions of employment are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace; and

   (ii)    there is a genuine need to employ the nominated person as a paid employee to work in the nominated position under the applicant’s direct control; and

   (iii)the position cannot be filled by an Australian citizen or permanent resident living in the same area.

   ·Local job advertisements for the nominated position that were not successfully filled, and the Regional Certifying Body’s certificate issued to the applicant in respect of this position

   9.Information about whether the applicant has been subject to monitoring by the Department and, if relevant, the outcome of the monitoring audit;

   10.Information about whether the applicant has been the subject of any investigation about a possible contravention of the law.

   This information, in writing, should be received by 4 October 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

   If you or another person authorised by the applicant cannot provide the information by 4 October 2022, you or another person authorised by the applicant may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us before 4 October 2022 and it must state the reason why the extension of time is required.

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. The applicant will also lose any entitlement it might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.…”

9. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 4 October 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement the applicant might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The applicant neither requested an extension of time within which to provide the information.  It is in these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

11. 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.

12. The Tribunal has carefully considered the RCB advice provided by The Regional Development Australia Central Coast New South Wales, which in the Form 1404 examined the 3 criteria at paragraph 15 and was not were satisfied.  The 2^nd criterion is that the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position.

13. The applicant’s submission dated 27 January 2018 referred to the position as being genuine.  It also operates two other businesses one of which was yet to open and may have done so by the time of this decision.  There is no current information as to whether this occurred.  The applicant states that it has a total of 15 staff, four full-time and seven part-time with four casual staff.  Of the 15 staff, eight are Australian employees and seven are foreign employees.  This information is not current and is difficult for the Tribunal to rely on it.  The applicant provided evidence of its domestic recruitment effort in the form of a summary however it is noted that there appears not to be any localised advertising which is the point the Ministers delegate was making.

14. The Tribunal is not satisfied that the applicant has made a genuine effort to find whether there are Australian citizens or Australian permanent residents who may have been available to apply for this position.

15. Accordingly, the requirements of reg 5.19(4)(e) are not met.

16. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

17. The Tribunal affirms the decision under review to refuse 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).