Kalra Group Aust Pty Ltd (Migration)

Kalra Group Aust Pty Ltd (Migration) [2020] AATA 5811 (20 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Kalra Group Aust Pty Ltd
CASE NUMBER:  1806623
HOME AFFAIRS REFERENCE(S):          BCC2017/1313371
MEMBER:Alan McMurran
DATE:20 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 20 November 2020 at 4:57pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Hairdresser – genuine position – nominee’s experience and skills – applicant’s business plan – a casual hairdresser engaged presently – full-time hairdresser required – skills shortage – labour market testing – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

in the STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The Nomination application

This is an application lodged 12 March 2018 for review of a decision made by a delegate of the Minister for Home Affairs on 22 February 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for the nomination approval on 7 April 2017.
This application is related to a visa application by Ms Ranju Kant, a 41-year-old citizen of India (the nominee). The nomination is for the occupation of Hairdresser (ANZSCO 391111). The nominee has made an application to the Tribunal for review of the refusal of the related visa application by the nominee and her 2 children.[1]
[1] T case file 1817667
A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person.
These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The Delegate’s decision
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the Regulations, r.2.72 (10) (f) in particular, because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
The delegate had regard to the information then available including the financial profile for the business, its structure and context including the scale of the business activities and found that while some duties to be performed were consistent with those of the nominated occupation, the majority of tasks likely to be performed by the nominee were not those substantially aligned with the position.
The delegate was not satisfied on the available information that considering other staff already employed and the size of the business and with the existing level of trade, that there would be sufficient work for the nominee. The delegate found there was no evidence provided of any expanding business turnover which might warrant consideration for the position.
The Tribunal hearing
The applicant appeared before the Tribunal on Thursday 19 November 2020 in a combined hearing with the review application by the nominee. The applicant appeared by telephone by its director, Mr Rajnish Kalra, who was authorised to give evidence and present arguments, and who was at his home at Wentworthville.
The Tribunal also received oral evidence from the nominee who was appearing by telephone from her home in Sydney with her 2 sons. Towards the end of the hearing, the Tribunal lost the connection with the nominee, after she had concluded her evidence. The Tribunal attempted unsuccessfully to reconnect the nominee, prior to ending the hearing.
Both the applicant and the nominee were represented in relation to the review by a registered migration agent, who appeared by telephone from his office.
There was no request for any adjournment or deferral of the hearing by either party, or from the representative, for the purpose of providing further submissions or information, or for reason that late in the hearing the nominee became disconnected.
The Tribunal for its part did not detect any prejudice to the nominee as her evidence was complete, and she had indicated before disconnection that she had no further questions or submissions and was listening to the discussion with the director. The nominee’s representative, who was also her nephew, undertook nonetheless to inform the nominee that the hearing had been completed.
The Tribunal did not detect any concerns raised by the telephone hearing as to whether there was any unfairness or lack of ability by either party to participate or to make submissions. None were raised by the representative or by the Tribunal at the time.
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 the present case is whether the applicant meets the criteria for approval of the nomination.
The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB (2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The particular issue of concern before the Tribunal was the issue raised by the Department as to whether the position nominated is genuine.[2]
[2] r. 2.72(10)(f)
The Tribunal had available from the nominator and the nominee the following documentation:
·the Department decisions
·an ASIC historical extract
·the Department’s electronic file and the Tribunal’s files
·2 detailed written submissions paginated and indexed from the representative on 11 November 2020
·financial information including 2019 ATO company return and 2020 ATO company return
·financial summaries for profit and loss prepared by the applicant
·submission from the representative on sub-regulations 2.73(3)-(12)
·EOT and fee waiver correspondence
·description of the business and staff
·evidence of advertising and remuneration for the occupation
In addition, the Tribunal had available the oral evidence elicited at hearing and set out below.
Oral evidence - the hearing
The Tribunal explained the process to the applicant’s director and the nominee. Both witnesses appeared to the Tribunal to understand the issue concerning whether the position existed, what it was proposed the nominee would be doing, and whether the applicant could justify the employment and nomination for the occupation, based on the needs of the business and its financial commitments.
The Tribunal firstly asked questions of the nominee, when she came to Australia, her purpose, and what she had been doing. The nominee identified herself with her full name and date of birth and confirmed her citizenship. She said she has 2 boys living with her in Sydney. She said she had been married in India but was now estranged and did not know where her husband was living. She thought he was still in India.
She said she arrived in Australia on 11 January 2017 on a tourist visa. The Department file shows this was granted in November 2016. She said she had some family here, namely her brother and sister-in-law through marriage, and her nephew. She said she spent some time travelling with her boys to show them Sydney. She was asked why she wanted to visit Australia, and she explained that her marriage had broken down in India, and she had family in Australia she wanted to see.
The Tribunal asked questions about the nominee’s introduction to the applicant. The nominee said she had met someone on a train after arriving in Sydney, another Indian person, who she told about her work experience and who suggested the nominee might like to find work as a hairdresser. The person gave the nominee details of the applicant and the director, Mr Kalra. The nominee contacted the applicant early in 2017 and was given an interview at the applicant’s salon for a role as hairdresser.
The nominee said she contacted her representative for advice. The nominee said that the applicant agreed to sponsor the nominee and to employ her as a hairdresser, subject to the grant of a visa. The nominee’s representative prepared the nomination application which was subsequently lodged on 7 April 2017, and the visa application on 9 April 2017. The representative confirmed he was acting for both applicants.
At that point in the hearing, the representative sought to explain to the Tribunal that in early 2017 the nominee (and the applicant) had not appreciated the delays which might flow from processing the nomination and the visa applications and the reviews, which by the end of 2018 was approximately already 18 months. The delay caused some embarrassment and financial difficulty for the nominee, who was financially stressed without being able to work during the nomination process and Tribunal review.
The nominee said the applicant offered to employ her as a hairdresser and gave her a written contract in May 2017[3]. The applicant however was unable to employ the nominee full time without a visa and having embarked on the nomination process, the applicant preferred to await the outcome. The applicant had also engaged a casual hairdresser in the meantime until the nominee became available[4]. The delays in processing and then these reviews were not caused by the applicant or the nominee, however delays caused difficulties because the applicant was unable to work. She said she had relied upon support from family and friends. She said her husband in India provided no support and she had last spoken to him by telephone approximately 7 months ago.
[3] Representative’s submission 11 November 2020, at folio 154;
[4] Ibid at folio 108
The applicant said once she obtained work rights[5], she obtained employment doing “odd jobs”, waiting for the visa outcome. She said this is still the situation, but that she is financially able to now support herself and her 2 boys doing temporary work until the visa outcome is resolved. The nominee said she attended the applicant’s premises late in 2018 at Baulkham Hills, and completed a work trial as a hairdresser “for a few months”, and after she had obtained work rights. She said the applicant still wants to employ her full time for the nominated occupation, despite the delay in nomination approval, which as at the time of this decision is in excess of three years and which the nominee said neither she nor the director had taken into account.
[5] Granted following a request from the representative to the Department in May 2018-Department file at folio 197;
The Tribunal asked questions about the applicant’s family relationship. The applicant said that she was not aware of any information about her husband’s activities in India and that from her perspective, the marriage had broken down and they were separated although not yet divorced. The applicant statement refers to her to boys who were both now attending school in Sydney.
The Tribunal asked more questions about what the applicant had been doing since early 2017. Other than as set out above, the nominee said she had left the issue of the visas to her representative, there was nothing she could do about that, and she was simply surviving pending the outcome. The applicant said she had remained in contact with the director and with the director’s wife, Seema, who is the other director of the applicant and who runs the beauty salon business styled as “Seema’s Unique Beauty Salon”.
The Tribunal asked questions about the applicant’s experience as a hairdresser. The applicant said she had been working for 10 years in India, as both a beautician and hairdresser and was “very experienced”.
The Tribunal put to her that if the nomination was unsuccessful, that would be the reason or part of the reason why the visa application might be refused. The nominee indicated that she understood.
The Tribunal proceeded to ask questions of the director, Mr Kalra. The witness identified himself as the director of the applicant and who is a 52-year-old Australian citizen, formerly from India. The director said he obtained his citizenship in about 2008 and that his wife is the other director of their business, and his business partner. He said his wife runs the beauty salon business and he does “everything else”. He said he manages the applicant which also includes a small mortgage broking business. He said the applicant owns 2 other business names, Elephant Towels and Essar Impex, which are currently not trading.
The director said the salon had opened in 2006, where the business operated from the directors’ home at Wentworthville. He said that Seema had a number of well-established clients who still liked to come to the home salon for treatments.
He said the hairdressing component of the salon was at retail premises at Baulkham Hills. He said the applicant leased retail premises in 2013, and then in 2016, relocated the business under a new lease to the current address at Old Northern Road. The applicant has produced a copy of both leases for the premises at Old Northern Road Baulkham Hills, and which current lease is due to expire in May 2022.[6]
[6] Submission 11 November 2020 at folio 131.
The Tribunal asked questions about the management and operation of the salon. He said the salon employs 2 beauty therapists, one of whom is full-time and one part-time. He said there is a receptionist (Sharry) who is also a hairdresser and beautician and can do parts of both jobs. He said they also employ a part-time hairdresser (Gouthami Sirangi)[7] who can only work part-time (approximately 6 hours per week) because of family commitments. He said his wife, Seema, manages the business on a day-to-day basis but he “looks after everything else”. He said his wife sometimes works from home for established clients and 1 of the other girls operates the salon in her absence.
[7] Ibid at folio 108;
The Tribunal asked questions about why another hairdresser was necessary, given that there was presently a casual engaged for that purpose. The witness said that firstly, the applicant always intended to employ a hairdresser full-time, and that the casual was engaged for what he thought would be a relatively short period pending visa approval for the nominee. He said they were turning work away because they did not have a full-time hairdresser. He said that the additional hairdressing work when the nominee was employed full-time would more than cover her expenses and improve the business bottom line. He said the current casual employee was not able to work full-time. He said that as he had embarked on the nomination process in April 2017, and this was their first sponsorship attempt, he wanted to “see it through”, but always intended the business would employ a full-time hairdresser. He said the applicant has a business plan which includes expanding the salon when the time is right, but also including provision for a full-time hairdresser to operate in the existing salon and in any new premises undertaken.
The applicant’s business plan has a projection for future operation which included the hairdresser and allowing for turnover (with a conservative increase) of approximately $288,000 per annum.[8]
[8] Ibid at folio's 89-107
The Tribunal asked about the financial operation of the business and informed the witness that not a great deal of weight could be placed upon financial “projections”, but rather about its current performance. The director responded that it was always the applicant’s intention to grow the business, but that it was difficult without engagement of the nominee to include the hairdressing component full-time. He said the revenue would grow from a full-time employee and from increasing the clientele and he was impatient for that to commence.
The Tribunal drew attention to the fact the business had been trading with small losses. In 2020, the anticipated loss was $28,000. The director responded that the business had been trading since 2006 and that the applicant had always been able to meet its liabilities as and when they fell due. He said it was necessary to engage the hairdresser full-time which would improve the cash flow bottom line and revenue, as a full-time hairdresser earns significantly more than a casual hairdresser working 6 hours per week. He thought the business was trading relatively well, considering the difficulties small businesses had faced in 2020. He said the business survived without the need for any bank loans or personal lending, and the directors’ loan accounts had steadily reduced. He said the company had lodged its 2019 ATO return and the 2020 return had also been completed and has been produced. He said they engage a professional accountant who prepares and lodges BAS (also produced) and does the taxation accounting.
The Tribunal asked about how the nominee had been engaged. The director said it had been very difficult to recruit successfully any good hairdressing staff. He said they were hard to find and advertising had proved unsuccessful. He said the nominee had completed the trial at the end of 2018 and they were satisfied she was more than suitable for the hairdressing position. He said she would not be doing beauty therapy but only working as a hairdresser, which was the business objective and projection for growing the business. He said they need the hairdresser full-time if they are to be successful in that objective. He said he had not checked the nominee’s references personally but had been satisfied by what he had seen and his wife’s recommendation that she was very proficient and suitable for the role. He said the applicant had always paid salaries including superannuation and all obligations and was meeting all its workplace requirements.
The Tribunal asked the migration agent on conclusion of the hearing whether he had any further submissions to make after listening to the evidence. He reiterated that the Tribunal should not be misled by the fact significant delay had slowed the business and its financial predictions and performance. He said the applicant had made genuine attempts to recruit a full-time hairdresser and that the nominee was the most suitable in those attempts, but that her engagement had been delayed significantly, which was impacting the business.
He submitted that the applicant’s advertising attempts were genuine and referred to his written submissions[9] that the labour testing requirements were not applicable in this instance. He submitted that the Tribunal should be satisfied that the hairdresser position was “genuine” and that the nominee was suitable for the occupation and that the nomination should be approved.
[9] Ibid at folio 13
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal finds it is satisfied that the applicant has nominated an occupation of hairdresser under s.140GB(1)(b): r.2.73(1A)(a); that nomination identifies the nominee as the proposed applicant for a Subclass 457 visa and as the person who will work in the occupation: r.2.73(1A)(b).
The Tribunal finds the nomination was made using the approved Internet form and the applicant has paid the prescribed fee. The applicant has also identified the nominee, Ranju Kant, and has certified in the application that the applicant has not engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B).

The nomination includes the location in Sydney at Baulkham Hills where the occupation will be carried out and the ANZSCO code 391111 for the occupation of Hairdresser as nominated by the applicant and who is a standard business sponsor.
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The Tribunal is satisfied on the information from the departmental records that the applicant is a standard business sponsor approved for the period from 17 October 2018 to 17 October 2023.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
The Tribunal finds that the applicant has identified the proposed visa holder (the nominee) as the person who will work in the nominated occupation, and at the location specified in Sydney. The nominee has given evidence confirming her identity, and the location where she will work if the visa is granted.
The Tribunal finds on the available information it is satisfied that the applicant has identified the nominee as the person who is the subject of the nomination application for the occupation of hairdresser.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument IMMI 17/060; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal finds it is satisfied that the nomination for the occupation of Hairdresser includes the corresponding 6-digit ANZSCO code 391111.
The Tribunal finds that the applicant has provided details of the leased retail premises at Baulkham Hills in Sydney where the occupation will be carried out.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR (1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR (1) of the Act.
From the information available on the departmental file for the applicant, the Tribunal is satisfied that the certification has been included as part of the nomination application.
For these reasons the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
On the available information, the Tribunal is not aware of any adverse information known to it or to Immigration concerning the applicant, the nominee, or any person associated with the applicant.
For these reasons the requirements of r.2.72(9) are met.
Specified occupation
Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument.
In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b). There are no such circumstances applying to this application.
The Tribunal is satisfied that the relevant instrument sets out the nominated occupation of Hairdresser which corresponds to the occupation and the 6-digit code (ANZSCO 391111).
This occupation is subject to an applicability condition specified in the relevant Instrument as Item 1 for the Short-term Skilled Occupation list.[10] The condition sets out positions for which the occupation is inapplicable, being where “the position does not require a minimum of 2 years’ relevant work experience”.
[10] Section 8 IMMI 17/060
The Tribunal is satisfied on the available evidence and having heard from the nominee, and with regard to the information on the departmental files, that the nominee has in excess of 2 years’ relevant work experience, according to the reference information and qualifications provided, and that this is not a position which does not require a minimum of 2 years relevant work experience. The evidence is and which the Tribunal accepts that the nomination is for an experienced hairdresser and where the nominee has in excess of the minimum relevant experience.
For these reasons the requirements of r.2.72(10) (aa) are met.
The Tribunal also finds in this instance that it is not necessary or a requirement for the nomination to be supported by a specified organisation.
For these reasons the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in Instrument IMMI 09/113 all r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI13/028 and which specifies earnings of $53,900 per annum [r.2.72(10AB)].
The applicant has submitted an employment agreement with the nominee, completed in April 2017 and for an agreed salary of $54,000 per annum, plus statutory entitlements including superannuation. The evidence is that this will be the contract applicable to the nominee, if and when a visa is granted. The applicant submits that there is no equivalent Australian or permanent resident employee engaged as a hairdresser full-time in the applicant’s salon. The applicant has therefore had regard to the TSMIT threshold of $53,900 per annum in calculating the salary. The applicant has also had regard to evidence produced from an ABS survey showing hairdressers on average earn approximately $53,300 per annum.
The applicant also relies upon the information in the Hair and Industry Award 2010, asserting that the nominated salary exceeds the applicable Award hourly rate. The applicant further submits that according to Payscale Australia, the industry average for a hairdresser is between $42,000-$62,000 per annum. As at the time of decision, the Tribunal is satisfied on its own enquiry that the recommended Payscale industry average has remained between $41,000-$61,000 per annum (slightly reduced).
The Commonwealth Department of Jobs and Small Business refers to a shortage of hairdressers in NSW in a 2018 report as follows:
CURRENT LABOUR MARKET RATING: SHORTAGE
There was a shortage of hairdressers in Sydney and regional New South Wales in 2018.
KEY RESEARCH FINDINGS
·     Employers filled 27% of vacancies with an average of 4.1 applicants, 2.5 qualified applicants and 0.7 suitable applicants per vacancy.
·     The majority of vacancies surveyed were in hairdressing salons.
·     Employers sought fully qualified hairdressers with experience in all aspects of hairdressing.
·     Qualified applicants were considered to be unsuitable if they did not have a stable work history or were unable to work the hours needed in the role. Some employers commented that applicants availability and flexibility to fill the roster presented challenges to recruiting.
Applicants who lacked interpersonal skills were also considered unsuitable.[11]
Employers indicated that both junior and senior hairdressing positions were difficult to fill.
[11] vide: employment.go.au/occupational-skill-shortages-information
The terms and conditions as set out in the proposed employment contract[12] are relevant and reflect Australian laws in terms of suitable and applicable terms and conditions, inclusive of leave and other entitlements.
[12] Dated 6 April 2017- viewed at agent’s submission, 11 November 2020, at folio 154
In general terms, the Tribunal finds that the nominee’s earnings as per the contract are no less favourable than those for the relevant Australian equivalent and there is no substantial contrary evidence that the nominee’s set of terms and conditions and earnings is not less favourable than the Australian equivalent’s set.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).
The Tribunal is satisfied on the evidence outlined above that the nominee’s annual earnings will be a minimum $54,000 per annum plus superannuation. These annual earnings are equal to or greater than the income threshold specified in the instrument for r.2.72(10AB).
The Tribunal is further satisfied as to the average base rate of pay for an equivalent Australian citizen or permanent resident for the occupation is in a range between $41,000-$61,000 per annum and averaged at $51,000 per annum. The Tribunal finds the applicant’s offer to the nominee of $54,000 per annum exceeds the average base rate of pay for an equivalent Australian citizen or permanent resident performing the same occupation. The Tribunal finds the base rate of pay and annual earnings of the nominee are equal to or greater than the TSMIT.[13]
[13] temporary skilled migration income threshold
For these reasons the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
The Tribunal has had regard to the available information and the evidence and finds it is satisfied the applicant has provided the applicable written certifications for the above matters.
For these reasons the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
This was the issue in particular which troubled the Department. The Tribunal has had regard to the evidence as set out above. The Tribunal has paid careful regard to the evidence of the director and the nominee. The Tribunal asked questions in order to be satisfied whether the position is what it purports to be, that of a hairdresser working in a retail salon, and whether it actually exists. This was particularly a more difficult issue given the nominee has yet to work in the salon on a full-time basis, while awaiting the outcome of her visa application. The director explained the business is currently “getting by” with a casual employee filling the role, but on a very limited basis.
The Tribunal has also had regard to the industry advice set out at paragraph 82 above.
The Tribunal finds that:
·     the applicant operates a beauty salon which incorporates a hairdressing component;
·      the nominee is qualified as an experienced ha evidence;
·     the nominee has completed a trial to demonstrate her skills;
·      the applicant has offered the nominee an employment contract which includes minimum requirements as to terms and conditions and salary
·     the applicant has provided a workable business plan and explained why it has been reluctant to employ another full-time hairdresser while the nomination is pending
·     the applicant has explained its current business performance and the ability to pay the nominee salary
·     the applicant has explained the skill shortage and desire to have an experienced hairdresser such as the nominee, continues to offer the position to the nominee and the nominee is available for the position;
The Tribunal give some weight to these findings which in the Tribunal’s view support the submission that the position is “genuine” and what it in fact purports to be.
The director and the nominee have explained the tasks and duties to be performed, which fully align with the position nominated. No evidence has been produced or asserted which might contradict any of the stated facts and circumstances, the business context and the position nominated within that context. The director asserts the nominee will only be performing hairdressing duties, which are required to keep building the business and service those clients including many who are presently being turned away for want of an experienced hairdresser.
Taking into account all of the above, the Tribunal finds it is satisfied that the position associated with the nominated occupation is genuine and meets the settled qualitative test as to alignment of the tasks and duties of the position with the occupation.
For these reasons the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument as exempt.
The Tribunal finds that the applicant is not exempt and that the copy of the written employment contract (dated April 2017) produced for the nominated occupation and available to the nominee if the visa is granted, has been provided to the Tribunal.
For these reasons the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.
On the available information, the Tribunal finds that the applicant is not a party to a work agreement and to which the occupation relates.
For these reasons the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/137. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.

The applicant’s migration agent has submitted[14] that the applicant is exempt from the labour market testing requirements on a proper interpretation of the Instrument which exempts the requirement. The submission states in part:
[14] 11 November 2020 at folio 13
“The labour market testing condition does not apply to the applicant in this case
because the nomination is subject to the occupational exemptions in the relevant
instrument: s.140GBC. For a skills and occupations exemption under s.140GBC
to apply, the nominated occupation must be both specified in the relevant
instrument (IMMI 13/137) and satisfy the requirements of s.140GBC(3). The
relevant instrument has specified the occupation, ‘Hairdresser’, at Skill Level 3.
The requirement that the nominee has 3 years or more of relevant experience to
meet the requirements of s.140GBC(3)(a)(ii) is met given the years of experience
that the nominee has worked in the field as detailed in the Job Description
Document. The Minister specified for the purpose s.140GBC(4)(b) of the Act all
occupations that are classified in the ANZSCO as Skill Level 2.”
Section 140 GBC (3) of the Act sets out that the approved sponsor is exempt from the labour market testing condition if either the nominated position requires a relevant Associate Degree, Advanced Diploma or Diploma, and/or 3 years or more of relevant experience.
The nominated occupation of Hairdresser in the relevant instrument [15] is described in the ANZSCO guide and sets out that at least three years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.
[15] Immi 17/060
The guide further provides that the occupation is at Skill Level III, which ordinarily would not exempt the occupation from the labour testing requirements, but for a finding as to the nominee’s level of experience.
The applicant’s submission asserts that because the nominee has at least 10 years of overseas experience as a hairdresser, the advertising and market testing does not apply in this case.
In the Tribunal’s opinion, this submission cannot be accepted. That is for the reason that the relevant instrument, IMMI13/037, provides that only those occupations at Skill levels I and II are exempt for the purposes of s.140GBC (4) (a) and (b). As the nominated occupation is at Skill Level III, it is not exempt.
The Instrument provides that it be read in conjunction with s.140GBC(2)(a), which provides an exemption for 5 years or more of relevant experience, if so expressed in ANZSCO. Again, that would not exempt the occupation where only 3 years is required of relevant experience.
S.140GBC(3)(a), relied upon in the submission, and specifying only 3 years or more of relevant experience, does not avoid the provision in s.140 GBC(4), being the skill and occupation exemptions listed in an Instrument, and which specifies an occupation for the purpose of sub section (2), in turn requiring 5 years or more of relevant experience. The nominated occupation in this instance therefore at Skill Level III and requiring only 3 years’ experience, does not meet the exemption provisions.
The Tribunal finds therefore that the LMT provisions do apply in this instance.
The Tribunal has considered the evidence of advertising produced, noting that includes details of advertisements placed online. The Tribunal is satisfied that the labour market testing occurred in the specified period of 12 months of the position being offered.[16]
[16] Immi 13/136
The Tribunal is satisfied the applicant has given evidence of its recruitment attempts including payment for advertising for the position, oral evidence as to the recruitment of hairdressers, 1 of whom lasted for approximately 2 months full-time before leaving, and a second person who was a casual, leaving after a very short period. Neither of these job applicants proved suitable and the director has given evidence of the difficulty in finding an alternative experienced hairdresser to fill the role. The Tribunal accepts that evidence and that the applicant has made genuine and real attempts to find a suitable employee from the local labour market.
The Tribunal finds that despite the applicant’s best efforts, it has been unable to find a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder not readily available to fill the nominated position.
For these reasons, the labour market testing requirements in s.140GBA are met.
Summary
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Alan McMurran
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2020] AATA 5811

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