Mara Kelleher (Migration)

Mara Kelleher (Migration) [2023] AATA 741 (28 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mara Kelleher
REPRESENTATIVE:  Mr Don Katugampala (MARN: 9601070)
CASE NUMBER:  1920286
HOME AFFAIRS REFERENCE(S):          BCC2017/4320888
MEMBER:Warren Stooke AM
DATE:28 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 28 March 2023 at 1:18pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – hairdresser – genuine need for position, and organisational structure – most staff subcontractors, but business is expanding and requires full-time employee – labour market testing – financial capacity – nominee not currently working with business – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(3), (4)(h)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 17 November 2017. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(3) and 5.19(4)(h) of the Regulations because the nominator had not demonstrated a genuine significant increase in turnover which would justify the employment of a Hairdresser and maintained an organisational structure based upon contracting, and therefore the genuine need for the nominated position. The nominator therefore did not meet regulation 5.19(4)(h).
The applicant appeared before the Tribunal on 22 March 2023 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant advised the Tribunal that the applicant had received a copy of the delegate’s decision, which was provided to the Tribunal with the application for review.
The applicant stated that she understood the application was refused because of the structure around wages
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 this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant stated that the business was a hairdressing salon operating as Barber King that primarily operated on a rent-a-chair basis but the business was happy to employ a hairdresser on wages.
The applicant provided evidence that the business operated under a Trust Deed for the Mara Kelleher Family Trust, which was registered with ASIC on 31 March 2008 and assigned an ABN 70 875 958 337 and was registered for GST from 1 November 2015.
The applicant stated that she was the owner/manager of the business, where the business currently has an operating structure of 6 persons undertaking the work but had normally engaged 10 to 12 persons and 2 casual employees.
The applicant stated that the former nominee was previously employed on a part-time basis and was not currently working with the business and was currently residing in Sri Lanka.
The applicant stated that the sponsorship was required because of staff shortages and that there were not enough hairdressers in the state of Tasmania.
The applicant stated that the duties included all hairdressing and barber skills and the ability to use software for the barbershop management.
The applicant stated that the rent-a-chair organisational structure enabled the business to engage personnel with the invoice of the management for their performed work.
The applicant stated that the nominee for the position will be employed full-time and engaged for 38 hours per week.
The applicant confirmed that a contract for the former nominee (Fernando) was affected on 24 October 2017 with a salary of $50,000 and where employment was subject to grant of the employee’s RSMS 187 visa for the business located at Sandy Bay, Tasmania.
The applicant provided evidence that the position was underpinned by the Hair and Beauty Industry Award and the NES prescribed in the Fair Work Act 2009.
The applicant stated that the incumbent to the position required a minimum Certificate III in hairdressing.
The applicant stated that the nominee for the position would be paid the award rate, which will exceed the former $50,000 included in the 2017 contract.
The applicant provided evidence of an Organisational Chart that included the Owner/manager; subcontractors and a full-time employee in the nominated position.
The applicant provided evidence that the position of hairdresser was advertised with Seek on the 15 November and 28 November 2017.
The applicant provided evidence of an RSMS for the nominated position of Hairdresser – ANZSCO Code: 391111 for the nominee, Fernando, to work with Barber King on a salary of $50,000 that was approved on 20 March 2018 by the Department of State Growth Tasmania.
The applicant stated that the business needed another 3 to 4 full-time staff and that there had been a loss of good people because they have not satisfied the visa requirements.
The applicant provided the Tribunal with the following financial information contained in the Taxation Returns for the financial years ending 30 June 2020 and 30 June 2021:

2020

2021

Total Income

$378,193

$448,775

Total Expenses

$172,012

$210,983

Net Profit

$197,651

$230,519

Total Assets

$160,086

$289,449

Total Liabilities

$160,076

$289,439

Representative Submission – 11 December 2017

The Representative for the applicant provided the Department with the following submission on 11 December 2017:
“Mara Kelleher Family Trust is trading as Barber King, a hairdressing salon located in Sandy Bay, a short distance from the central business district. The current business structure is such that the owner, Mara Kelleher, ‘rents a chair’ to individuals who are seeking a hairdressing location to carry out their work but not looking to be directly employed by the business. There are currently 8 subcontractors engaged by the business.
Thus, while the business name is expanding and attracting more high end clientele, it requires a full-time hairdresser to meet the growing needs of clients who return to the salon, to provide a personal link between the business and clients and provide specialised hair care and treatment to returning clients. The aim is for the business to continue expanding independent of the signed subcontractors.
The business currently does not have a full-time employee, other than the owner. We have enclosed a copy of the organisational chart for your consideration.
The nominee has been offered the role given her qualifications (certificate III and IV in hairdressing) and commitment to remain in the position for the long-term and willingness to permanently relocate to Tasmania.
Labour market testing
The applicant has searched locally for an Australian citizen/permanent resident to fill the position offered to the nominee. The applicant placed an online advertisement via Seek around 11 October 2016, which is ongoing (evidence of advertisement has been uploaded via the IMMI account).
The applicant received multiple applications however none of the candidates who were interviewed demonstrated the relevant skills to occupy the position or willingness to remain in the position for the long-term. Therefore, the position has been offered to the nominee.”
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The applicant lodged the application to nominate the nominee for the position of Hairdresser – ANZSCO Code: 391111 with the business on 17 November 2017 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).
The applicant has provided an organisation chart and statement to the Tribunal that identifies a claim for a need for the nominee to fill the advised position of Hairdresser under the nominator’s direct control.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant provided evidence that the nominating business, Mara Kelleher Family Trust, trading as Barber King, was first registered with the ASIC on 31 March 2008, and was assigned a registered Australian business number of ABN: 70 875 958 337.
Further, the Tribunal is satisfied that the business, based upon the information presently before the Tribunal, is actively operating lawfully and is directly operated by a Director of the business.
Further, the business has demonstrated an economic capacity to support the employment of the nominee for a period exceeding two years with an adequate net profit provided in evidence for the taxation period 2020 and 2021 of $197,651 and $230,519, respectively. In this regard, the contracted rate of salary will be the prevailing award rate that exceeds the $50,000 contained in the former contract of employment for the nominee on 24 October 2017 and the business has the capacity to employ the nominee.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal finds that r.5.19(4)(c) is not relevant to the current nomination.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension having already been employed on a full-time basis.
The applicant provided the Tribunal with evidence that the nominee has a contract of employment that commenced on 24 October 2017 and that the nominee has a contract of not less than 2 years from the grant of a 187 visa. In this regard, the evidence identified that the nominee, at the time of contract, had a salary of $50,000 and the position was designated as Hairdresser on the organisation chart, reporting to the Director/owner of the business.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
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.
The Tribunal is satisfied that the terms and conditions of employment, which are based upon the prevailing award terms and conditions of employment, are no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal about the nominator or a person associated with the nominator.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The evidence before the Tribunal identifies that the applicant has a current contract of employment with the nominee that is operative from 24 October 2017 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and had a salary that exceeded the minimum award entitlement, at the time. The applicant confirmed at hearing that the nominee will be paid the prevailing award rate of pay and statutory entitlements.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (that applied at the time of application), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied on the basis of the evidence that the position and business is located in ‘regional Australia’ and that the applicant applied for Regional Certification, which was granted on 20 March 2018 by the relevant Regional Certifying Body: Department of State Growth Tasmania and confirmed the position could not be filled locally for the occupation of Hairdresser – ANZSCO Code: 391111. The Regional Body approved the nominee P R J Fernando on a salary of $50,000 (at the time).
Further, the Tribunal is satisfied, based upon the evidence that there is a genuine need for the position of Hairdresser to work under the direct control of the business Director/owner and that the position was advertised with tSeek and could not be filled by an Australian citizen or permanent resident who is living in the same local area with the equivalent skills and competencies. The Tribunal is also satisfied that the applicant engaged in market testing of the position prior to appointment of the nominee. The applicant confirmed in evidence that there is a shortage of skilled hairdressers and that the business currently has vacancies for 4 positions.
Additionally, the Tribunal is satisfied that the business has the financial capacity to employ the nominee in the full-time position of Hairdresser. In the Tribunal’s view, the business warrants the engagement of a Hairdresser and the position is genuine. As such, the proposed Hairdresser duties are consistent with the ANZSCO descriptor for a Hairdresser, under the direct control of the Director/owner.
The Tribunal is satisfied, based upon the evidence of the applicant that the position includes all of the tasks outlined in the position descriptor for a Hairdresser – ANZSCO Code: 391111.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Warren Stooke AM
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).

[2023] AATA 741

28 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

2020	2021
Total Income	$378,193	$448,775
Total Expenses	$172,012	$210,983
Net Profit	$197,651	$230,519
Total Assets	$160,086	$289,449
Total Liabilities	$160,076	$289,439