MDTP Pty Ltd Atf Joveski Family Trust (Migration)

MDTP Pty Ltd Atf Joveski Family Trust (Migration) [2022] AATA 4503 (22 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MDTP Pty Ltd Atf Joveski Family Trust
REPRESENTATIVE:  Ms Shalini Vellapandian (MARN: 0743002)
CASE NUMBER:  1916596
HOME AFFAIRS REFERENCE(S):          BCC2017/3934869
MEMBER:Antonio Dronjic
DATE:22 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 22 November 2022 at 5:07pm
CATCHWORDS
MIGRATION–nomination –Hair or Beauty Salon Manager – application is compliant –– genuine need to employ a paid employee to work in the position under the nominator’s direct control – no adverse information –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– majority of the tasks of the nominated position correspond with those of the ANZSCO occupation of a Beauty Salon Manager – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR, 359
Migration Regulations 1994, r 5.19
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 13 June 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 25 October 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 nominating business is MDTP Pty Ltd Atf Joveski Family Trust. This entity operates GoFigure Women’s Health Club at Queanbeyan, NSW. The nominated occupation is Hair or Beauty Salon Manager - (ANZSCO 142114). The nomination was lodged in favour of Ms Julijana Popov.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because the delegate was not satisfied that there is a genuine need for the nominator to employ the person identified as a paid employee, to work in the position under the nominator’s direct control.
On 3 July 2022, the applicant submitted a copy of the Financial Statements for the year ending 30 June 2018 and a letter from the applicant’s accountants dated 3 July 2019 stating inter alia that the financial position and performance of the nominating business remains solid with continued growth prospects anticipated and can continue to provide secure employment to Mrs Julijana Popov.
On 27 August 2019, the applicant submitted a letter dated 30 June 2019 signed by both company directors, explaining the nature of the nominating business and the reasons for employing a full-time beauty salon manager. The letter also addresses the issues noted in the primary decision record.
It was, inter alia submitted in the above-mentioned letter that, to improve customer services, the beauty salon department within GoFigure Women’s Health Club was established on 1 March 2017. The beauty salon department employed an additional beauty salon employee who was mentored, supervised, and managed by the nominee. It was further submitted that the business owners do not have beauty industry qualifications and that beauty salon manager role and responsibility was assigned solely to the nominee.
The applicant applied to the Tribunal on 25 June 2019 and with the application submitted a copy of the primary decision record. On 5 July 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (Cth) (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of reg 5.19(4).
On 19 July 2022, the applicant’s representative submitted documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
On 12 October 2022, the Tribunal wrote to the applicant advising that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a video hearing on 22 November 2022. With the hearing invitation letter, the Tribunal invited the applicant to provide specific documentary evidence.
On 15 November 2022, the applicant’s representative submitted documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
On 16 and 17 November 2022, the applicant’s representative submitted additional documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment C.
Mr Joveski appeared on behalf of the nominating business before the Tribunal on 22 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Julijana Popov (the nominee). The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conferencing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Mr Joveski gave evidence that together with his wife Tanya he is the Managing director of the nominating business. Neither he nor his wife are employed by the business. They do not draw salaries but do take profit from the business. The business currently employs one full-time employee – the nominee, and six casual employees.
Mr Joveski stated in his evidence that the business started its operations in 2012 as a female only gym. As the trend in this industry was to include other services for female members (such as child mining and beaty salon services) the business directors decided in June 2017 to expand the services provided by the business by setting up a beaty salon within the existing premises.
The nominee was introduced to the business owners at the social event. She commenced her part-time employment at the nominating business in March 2017. In October 2017, after completing her studies in Australia, she commenced a full-time employment. In Australia, she has completed a diploma in beauty therapy and an advanced diploma in Business Management. According to Mr Joveski’s recollection, the nominee has more than 9 years of relevant overseas work experience and one year of Australian work experience in the nominated position.
During the pre-COVID 19 time, the nominee managed two beauty salon staff. Approximately 20% of the business revenue was created by providing beauty services. To attract new members, some beauty treatment was included in the membership fees, usually capped to pre-determined amount depending on the length of individual membership. In the 2018/19 financial year, the business turnover exceeded $365,400. In the 2020/21 financial year the business turnover was $317,227.
Mr Joveski gave evidence that during the past three years, the business was severely affected by COVID 19 lockdowns and trade restrictions imposed by the government. As a consequence, large number of members cancelled their membership due to inability to use
Services. In addition, large cohort of membership was unvaccinated and was excluded from attending the gym by state/federal laws.
Despite of the stated problems, the business continued to employ the nominee and pay her wages. However, the business could not afford to keep the other, casually employed beauty therapists, employed. It is only several weeks ago that the business re-engaged the services of Ms Ava Sutton who is currently employed as a beauty therapy staff on a part-time basis. She is the only person currently managed and supervised by the nominee.
Mr Joveski gave evidence that the business is slowly recovering from the consequences of COVID 19 lockdowns and trading restrictions. The most recent turnover (for the 2021/22 financial year) is approximately $260,000. The membership increased to over 400 members. According to the latest BAS, the total sales was $110,000 representing significant improvement in comparison to the same quartering the previous financial year. If this trend continues, the business will retain services of additional beauty therapist who will be managed by the nominee.
Mr Joveski stated that the business has financial capacity to pay the nominee’s wages for the next two years. He referred the Tribunal to the letter submitted by the business’s accountants dated 14 November 2022 which confirms that the business is currently operating in a profitable manner.
Mr Joveski stated in his evidence that the entire operation of a beauty salon is managed by the nominee. He expressed his satisfaction with her performance and work ethic. He stated that the ability of his business to offer beauty services remain key differentiators when it comes to ability to attract new members and retain existing members.
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 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 an identified person as a paid employee to work in the position under their direct control.
Based on the information in the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and that no application fee is payable pursuant to reg 5.37 of the Regulations. The relevant s 245AR(1) certification was also provided in the application form. The identified occupation in the application is Hair or Beauty Salon Manager - (ANZSCO 142114).
The Tribunal is of the view that the reg. 5.19(4)(a) is directed towards requirements of the administrative process and that a simple statement or certification is sufficient to meet r 5.19(4)(a)(ii). Although the qualitative aspects of the nomination will be considered under reg. 5.19(4)(h)(ii)(B), the Tribunal observes that evidence has been presented to the Tribunal, regarding how the position was needed. The fact the nominee has been employed in the role since October 2017, is sufficient to demonstrate the need for the nominating business to employ a paid employee to work in the position under their direct control.
Accordingly, the requirement in reg 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 Tribunal is satisfied based on the material before it, including the business’s registration documents, activity statements, payroll activity information and other information about the business’s activities, that the applicant is actively and lawfully operating a business in Australia.
Accordingly, the requirement in reg 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 applicant is not involved in labour-hire activities. Accordingly, the requirement in reg 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.
The Tribunal has had regard to the employment contract between the parties. The contract confirms the nominee will be employed on a full-time basis and that the employment contract does not expressly exclude the possibility of extending the period of employment.
The Tribunal has had regard to the documents provided on review, including the recent financial statements. The Tribunal accepts that this industry was severely affected by COVID 19 related lockdowns and trading restrictions imposed by the Government. Many similar businesses did not survive.
The Tribunal notes that the nominator traded with a small profit during the 2020 and 2021 financial years despite being adversely affected by COVID 19 lockdowns and challenging business conditions.
Mr Joveski gave evidence that the business is still recovering from the restrictions and trading limitations imposed by the government during the COVID19 years. According to his evidence, the business turnover and membership numbers increased during the most recent BAS quarter. The Tribunal accepts that the overall business performance and its competitiveness would be adversely affected if the business is no longer able to retain the services of the nominee and continue to provide additional beauty services to its members.
The Tribunal is satisfied on the totality of the evidence, including the confirmation provided by the business’ accountants, the nominee’s ATO assessment notices from 2017 to 2022, and Mr Joveski’s oral evidence that the applicant has the financial capacity to maintain the nominee’s salary as they have been doing since October 2017.
The Tribunal is satisfied on the material before it that the nominee will be employed on a full‑time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
Accordingly, the requirement in reg 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 nominee’s wages are set to $69,160 excluding the superannuation contributions. The representative provided submissions regarding the nominee’s salary and how it is no less favourable than what would apply to an Australian citizen or an Australian permanent resident performing equivalent work at the same location. The submission contained reference to the recent salary surveys (including Indeed and Seek) according to which the current market rate for the nominated position is between $55,000 and $65,000.
The Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that 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 reg 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 regs 1.13A and 1.13B.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Accordingly, the requirements of reg 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.
There is no evidence before the Tribunal that Fair Work or any other government agency has taken action against the applicant in relation to workplace relations laws. As such, the Tribunal is satisfied that the applicant has satisfactorily complied with workplace relations laws.
Accordingly, the requirements of reg 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 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 position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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 that the position and the nominator’s business are located in regional Australia, as the postcode of 2620 in Queanbeyan, NSW was specified as regional Australia in the relevant written instrument. The applicant must therefore meet the requirements of the second dot point above. As the position and the applicant are in regional Australia, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal is further satisfied that the applicant has a genuine need for the paid position, and that it is under the nominator’s direct control. The Tribunal accepts that the nominee commenced her employment in October 2017 and has been employed by the applicant as a Hair or Beauty Salon Manager to the present time. This fact of itself is a strong indicator of the need for the nominating business to employ a paid employee to work in the position under their direct control.
In addition, the relevant Regional Certifying Body (RCB), being the Regional Development Australia Southern Inland, certified in September 2017 that that there was a need for a paid employee in the nominated position within the business activities of the nominating employer.

Overall, having regard to the available evidence, the Tribunal is satisfied that the applicant’s business has a genuine need for the nominated role, and is therefore satisfied that reg 5.19(4)(h)(ii)(B) is met.
The Tribunal finds that relevant RCB certified on in September 2017 that the position could not be filled by an Australian citizen or permanent resident living in the same local area, and that its terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee. It is therefore satisfied that reg 5.19(4)(h)(ii)(F) is met.
Based on the certification above, and the documentary evidence provided by the applicant in relation to its recruitment exercise that led to the hiring of the nominee, the Tribunal accepts that the position cannot be filled by a locally resident Australian citizen or permanent resident. It is therefore satisfied that reg 5.19(4)(h)(ii)(C) is met.
The occupation proposed by the applicant was Hair or Beauty Salon Manager which has the six-digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 142114, and which is specified in the relevant instrument, being IMMI 15/083.
The applicant submitted to the Tribunal evidence regarding the tasks performed by the nominee in the position of Beauty Salon Manager. Mr Joveski conceded in his evidence that, because of trading restrictions and prolonged business closure during the COVID 19 years, the nominee worked both as a beautician and salon manager. He also gave evidence that neither he nor his wife have beauty industry qualifications and that beauty salon manager role and responsibility was assigned solely to the nominee.
Based on the evidence before it, and in particular the detailed job description and oral evidence received from Mr Joveski at the hearing, the Tribunal is satisfied that the majority of the tasks of the nominated position correspond with those of the ANZSCO occupation of a Beauty Salon Manager. This occupation is specified by the Minister in the relevant instrument as a Skill Level 2 occupation.
The Tribunal is therefore satisfied that reg 5.19(4)(h)(ii)(D) is met.
Accordingly, the requirements of reg 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.
Antonio Dronjic
Member

Attachment A: Document List
·ASIC Name Extract
·Current and Historical Company Extract
·Financial Documents
·Organisation Chart
·Position Description
·Employment Contract, Employment Confirmation and Market Salary
·Genuine Nature of Position to Business
·Regional Certifying Body certification
·Labour Market Testing undertaken prior to lodgement of RSMS, Subclass 187 visa application
·Monitoring Confirmation from Employer
Attachment B: Document List
·Nominee's Superannuation Yearly Statements (Julijana Popov, statements from 30/6/16, 30/6/17, 30/6/18, 30/6/19, 30/6/20)
·Nominee's ATO Notice of Assessments (years ending 2017, 2018, 2019, 2020, 2021, 2022)
·Nominee's PAYG payment summary (01/07/17, 01/07/2018) and Yearly Income Statements (2020, 2021, 2022)
·Letter from Accountant-Financial Viability for MDTP Pty Ltd ATF Joveski Family Trust
Trading as Go Figure Women’s Health Club
Attachment C: Document List
·Letter from Employer-Market Salary & Retrenchment (dated 16/10/2022)
·Letter from Employer-Financial Position (financial years affected by Covid)
ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       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).

[2022] AATA 4503

22 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice