Regal Nail Designs Pty Ltd (Migration)

[2019] AATA 1328

Regal Nail Designs Pty Ltd (Migration) [2019] AATA 1328 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Regal Nail Designs Pty Ltd

CASE NUMBER:  1801091

HOME AFFAIRS REFERENCE(S):           BCC2017/2105726

MEMBER:Michelle East

DATE:24 April 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 24 April 2019 at 5:00pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Hair or Beauty Salon Manager – genuine position – scale of business – four stores as well as other businesses – owner’s involvement – manages one of the stores – six children – nominee’s duties – managing and training staff – ordering stock – advertising – maintaining safety – 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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 January 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).

2. The applicant applied for approval on 14 June 2017. 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy paragraph 2.72(10)(f) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation is genuine.

4. The applicant, Ms Julie Cuc PHAM appeared before the Tribunal on 8 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms Bich Quynh Trang NGUYEN.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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.

   Background

8. On 14 June 2017 the applicant submitted an application for the approval of a nomination for the position of Hair or Beauty Salon Manager ANZSCO Code 142114 for the nominated person Bich Quynh Trang NGUYEN.  The delegate considered the ANZSCO description of the nominated occupation as well as the context of the business setting, including consideration of the financial profile of the business, its staffing structure, the primary activities of the business and the scale of those activities.

9. According to the Tribunal’s records, the nominated person did not have a pending review application before the Tribunal relating to a Subclass 457 visa refusal and/or had never applied for a Subclass 457 visa.  The Tribunal wrote to the applicant on 20 September 2018 with particulars of this information with reference to the new legislative scheme introduced from 18 March 2018.

10. The applicant’s representative responded on 27 September 2018 enclosing a copy of the applicant’s approval as a Temporary Business Entry Standard Business Sponsorship dated 27 October 2016 valid until 27 October 2021 as well as a copy of the nominated person’s grant of a Temporary Work (Skilled) (subclass 457) visa dated 1 October 2015 for the nominated occupation of Hair or Beauty Salon Manager ANZSCO Code 142114, valid until 1 October 2019 with a different sponsor.

11. The representative, in his response stated that the nominated person’s previous employer had decided not to keep her on and was hired by Regal Nails after ‘interviewing her and assessing her as a suitable employee.  The nomination process was to enable a transfer from one business to their business in the position of Beauty Salon Manager.  This is normal procedure for such visa holders transferring between businesses in the same occupation’.

12. The Tribunal accepts the applicant’s submissions that the legislative amendments do not affect this current application and this application for nomination approval can be used for the nominated person.

13. The applicant’s representative provided a copy of a nomination approval dated 12 October 2017 for the applicant with a different nominee for the occupation Hair or Beauty Salon Manager – 142114.  The Tribunal notes the proposed employment postcode is ‘6154’.    Information provided by the applicant to the Department indicates the applicant runs four nail salons.  This nomination relates to another shop in Garden City Shopping Centre.  The applicant said she has four shops, two in Garden City and two in Warnbro.  She said one shop in Garden City has a manager and she manages the other one.  She said she does what she can for the Warnbro shops, although she has other businesses as well as six children of her own to care for.  She said her husband has other businesses and despite her encouragement is not interested in the pedicure/manicure industry.

14. On 10 December 2018 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act requesting updated and current information addressing the criteria in r.2.72 of the Regulations. The applicant’s representative responded on 15 January 2019 with further submissions and evidence. This was:

    -Financial Report for year ended 30 June 2018 (balance sheet).  The Tribunal asked for and received the profit and loss statement for the same period.

    -Business Activity Statements (BAS)  for July – September  2016  and  October – December 2016

    -BAS for January – March 2017,  April – June 2017  July – September 2017 and October – December 2017

    -BAS for January – March 2018 and April – June 2018.  The BAS statements provided to the Tribunal did not have a receipt from the ATO and copies of those were also requested at the hearing and were subsequently provided

    -ASIC Company Extract for Regal Nail Designs Pty Ltd confirming the company’s registration

    -Financial Report for year ended 30 June 2017 (profit and loss statement and balance sheet)

    -Job Description for position of Salon Manager for Regal Nails Warnbro Shopping Centre

    -Course descriptions from Open Universities for Hair and Beauty Salon Assistants, Hairdressers and Retail Managers with remuneration surveys

    -ANZSCO Codes for Unit Group 1421 – Retail Managers

    -‘Job Outlook’ for Retail Managers

    -A signed offer of employment dated 10 June 2017 from the applicant to the nominated person for ‘Nail Salon Manager – Location Regal Nails Salon and Spa Warnbro WA 6169’

    -Organisational chart for Regal Nails at Warnbro Shopping Centre

15. At the time of the application it nominated the position of Hair or Beauty Salon Manager and stated the nominee, Ms Bich Quynh Trang NGUYEN would be paid a base salary of $59,130 per annum including 9.5% superannuation with agreed overtime, if required.  In the 12 months prior to the date of application, the applicant claims a gross payroll expenditure of $455,637.65 and that it had spent $778.18 on staff training and welfare.

16. According to the organisational chart provided for the Warnbro Store, there is a salon manager, one full time nail technician and seven part-time nail technicians employed in the store with the two directors, Cuc Pham and Julie Pham.

17. The salon is intended to have 11 staff consisting of 8 Australians and 3 foreigners.

18. At the hearing it was clarified that the structure provided is spread across the two stores located within the same shopping centre.

    The nomination must comply with the prescribed process

19. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.

20. On the basis of information on the Department’s file, the Tribunal is satisfied that the applicant identified Ms Bich Quynh Trang NGUYEN, the proposed applicant for a Subclass 457 visa, who will work in the nominated occupation of Beauty Salon Manager (142114).  The Tribunal is also satisfied that the application was made on the approved form which included the relevant certification regarding non contravention of s. 245AR(1) of the Act.  The Tribunal is also satisfied that the nomination includes the location, Warnbro, at which the occupation will be employed.

21. The requirements of r.2.72(3) are therefore met.

    Nominator is a standard business sponsor or party to a work agreement

22. 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.

23. The applicant has provided a Notice of Decision, Sponsorship Approval Notice, confirming the applicant has been approved as a standard business sponsor in the period 27 October 2016 to 27 October 2021.  The Tribunal is satisfied the applicant is a standard business sponsor.

24. For these reasons the requirements of r.2.72(4) are met.

    Identification of the nominee

25. 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.

26. The nomination identifies Ms Bich Quynh Trang NGUYEN as the person who will work in the nominated occupation.

27. For these reasons the requirements of r.2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

28. 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. In these cases:

    ·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7). The application submitted by the sponsor stated that the nominee would not be accompanied by any secondary visa applicants. Therefore the requirements of r.2.72(6)(a) are met.

    ·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b). The Tribunal does not require the visa holder to demonstrate she has the skills necessary to perform the occupation. Therefore the requirements of r.2.72(6)(b) are not applicable.

    ·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A). The existing Subclass 457 visa was granted before the sponsor provided an undertaking and therefore the requirements of r.2.72(7A) are met.

    ·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in IMMI 17/057. The visa applicant did not meet cl 457.223(6) and therefore r.2.72(10)(g) is not relevant

    Information about the nominated occupation

29. 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.

30. The Tribunal is satisfied that the applicant provided, as required, the name of the occupation and the corresponding 6-digit ANZSCO Code : Hair or Beauty Salon Manager (142114).  The applicant also provided the location at which the nominated occupation is to be carried out: Warnbro, WA.

31. For these reasons the requirements of r.2.72(8A) are met.

    Certification relating to conduct under s.245AR(1)

32. 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.

33. The applicant has provided the required certification as part of the nomination. The requirements of r.2.72(8B) are therefore met.

    No adverse information known to Immigration

34. 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.

35. The Tribunal enquired with the Department and was advised that the applicant had been the subject of an allegation in 2018 of engaging illegal workers.  This information was put to the applicant pursuant to section 359AA of the Act.

36. The Department did not take any action in relation to this allegation and the Tribunal is hesitant to give any weight to information that is the subject of an anonymous allegation.

37. Accordingly, the Tribunal considers it reasonable to disregard such information.

38. For these reasons the requirements of r.2.72(9) are met.

    Specified occupation

39. Subclause 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 IMMI 17/060, 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).

40. The applicant is a Standard Business Sponsor.  It nominated the position of ‘Hair or Beauty Salon Manager’ which is an occupation specified in IMMI 17/060.  On 19 April 2017 and further on 1 July 2017 changes were made to the 457 program in respect of this occupation which is now subject to ‘inapplicability conditions’ which means that the nomination of this occupation is now subject to additional considerations or caveats.

41. The occupation Hair or Beauty Salon Manager is now subject to inapplicability conditions numbers 13 and 21 specified in the instrument.  Condition number 13 applies to the position not predominantly involving ‘hairdressing or beauty therapy related non-managerial tasks’ and condition number 21 applies to the position not being ‘in a business that has fewer than 5 employees’.

42. The Tribunal asked the applicant and the visa applicant to explain their understanding of what the majority of the tasks would involve.  The Tribunal specifically asked if the nominee would be performing manicure/pedicure services.  The applicant said the nominee’s skills were essential in maintaining quality control within the shops, however the majority of her tasks would relate to running the salons, not performing those duties within the shops.

43. In considering these inapplicability conditions or caveats and based on the written and oral evidence before it, the Tribunal is satisfied that the applicant will not be predominantly involved in hairdressing or beauty therapy related non-managerial tasks and that the business does not have fewer than 5 employees.

44. For these reasons the requirements of r.2.72(10)(aa) are met.

45. The instrument does not require that the nomination be supported in writing by a specified organisation and therefore the requirements of r.2.72(10)(b) are not applicable.

    Terms and conditions of employment

46. 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.

47. 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.

48. 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: r.2.72(10AA).

49. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028 r.2.72(10)(AB).

50. The applicant has supplied a signed offer of employment, dated 10 June 2017, providing for an annual salary of $54,000 plus 9.5% superannuation for a full time 38 hour week with eligibility for agreed overtime entitlements.  As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements.  Therefore, the Tribunal must be satisfied 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.

51. At hearing and in submissions provided prior to the hearing it was demonstrated the business has no Australian employees performing equivalent work at the same location.  This was confirmed in an organisational chart.  Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.

52. IMMI 09/113 sets out that if there is a fair work instrument, state industrial instrument or transitional instrument that applies or would apply to Australian citizens or Australian permanent residents in the same workplace at the same location and would apply to the person identified in the nomination, then the terms and conditions of employment set out in that instrument are the terms and conditions that would be provided to an Australian citizen or Australian permanent resident to perform equivalent work.

1. By reference to this instrument, the Tribunal finds that there is no applicable fair work instrument, state industrial instrument or transitional instrument applying to the nominated occupation and the method in item 2(1) of IMMI 09/113 is not applicable.  Therefore the Tribunal must instead have regard to ‘relevant information’ in determining the terms and conditions that would be provided to an Australian equivalent employee.

2. The Department and Tribunal were provided with remuneration surveys for ‘Hair and Beauty’ Salon assistants, hairdressers and retail managers.  The applicant has provided advertisements with salary details for occupations in the same unit group(1421).

3. The Tribunal has also had regard to Payscale, which indicates the salary range for a Salon manager is $41,564 - $62,276. (Payscale website accessed 2 April 2019)

4. The Tribunal is satisfied that the proposed terms and conditions of employment for the nominated position are no less favourable than the earnings and terms and conditions that are provided, or would be provided to, an Australian citizen or permanent resident performing equivalent work at the same location.

5. For these reasons the requirements of r.2.72(10)(c) are met.

   Base rate of pay

6. 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.

7. The current TSMIT for the purposes of r.2.72(10)(cc) is $53,900: IMMI 13/028.

8. 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.

9. 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).

10. As the base rate of pay of the nominee’s annual earning is proposed to be $54,000, the base rate of pay for the nominated position is greater than the current TSMIT of $53,900. The Tribunal therefore finds that r.2.72(10)(cc) is satisfied.

    Certification under r.2.72(10)(e)

11. 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 relevant instrument.

    ·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the instrument IMMI 13/067.

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.

12. Based on the information before it, including in the visa application, the Tribunal is satisfied that the requisite and relevant certification has been made. For these reasons the requirements of r.2.72(10)(e) met.

    Position must be genuine

13. 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.

14. The delegate did not consider the position associated with the nominated occupation to be genuine in the context of what they described as the ‘relatively modest operating environment of a business of this scope and scale’.

15. They found there was a lack of supporting evidence regarding current demand, proposed expansion, involvement of the business’s owners and the requirement for the nominated position.  The delegate did not think there was sufficient work for the nominee to be performing tasks of the nominated occupation on a full time basis and that the business was able to support the position financially.

16. The Tribunal has reviewed the documents provided to it as well as the oral evidence given at hearing by the applicant and the nominee.

17. The evidence indicates the applicants own four stores as well as other businesses.  Two of the salons are in Garden City Shopping Centre and two are in the Warnbro Shopping Centre.  The intention is that the nominee manages both salons in Warnbro.

18. The applicant said she manages one of the Garden City shops and has a full time manager in the other shop.  She said she does what she can for the Warnbro shops but finds it extremely difficult to be there regularly to oversee staff and the operations of the shops.  She said she relies on the staff informing her when things are needed such as stock or whether there are any customer complaints.  She said the system is not working well and she is desperate to employ a salon manager.  She said she also has six children with ages from 3 – 21 which clearly impacts on her time available.  The Tribunal asked whether her husband, who is a co-director assisted in the business and she said he was not interested in the subject of the business and has other business interests.

19. The Tribunal questioned the applicant and the nominee about the intended role of the nominee in the salons.  The applicant outlined that the nominee would open and close the store (at the moment various staff members do this), she would roster the staff according to demand within the shops, as she is a nail technician herself she would oversee the staff and maintain quality control, she would train the staff in their service and skill, order stock, advertise on Facebook and ensure safety in the shop.  She would also handle the takings and make sure the shop is secure and tidy at night.

20. A review of the financial records reflects a healthy turnover and gross profit.  The records indicate the business has got the financial capacity to employ the nominee in the nominated position.  Whilst gross profit from trading decreased from 2016-2017, net profit increased over the same period mostly due to a decrease in rental and wages expenses.  Net assets also increased over the same period.  A balance sheet for the 2017-2018 period was also provided which reflected an overall increase in net assets.  The Tribunal notes the increase in cash on hand for the business as well as for the individual shops.

21. After speaking with the applicant and the nominee the Tribunal is satisfied that the nominee’s proposed duties generally reflect those listed in ANZSCO.

22. For these reasons the requirements of r.2.72(10)(f) are met.

    Employment under contract

23. 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.

24. The applicant has provided to the Tribunal a signed offer of employment dated 10 June 2017 which sets out the terms and conditions of employment and confirms the annual salary of $54,000 exclusive of superannuation and any agreed overtime. 

25. The Tribunal requested an updated employment contract which was provided.

26. For these reasons the requirements of r.2.72(10)(h) are met.

    Work agreements

27. 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 applicant, these must have been met.

28. The applicant is not a party to a work agreement, and for this reason the requirements of r.2.72(11) and (12) are not applicable.

    Labour Market Testing

29. 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.

30. 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 13/136.  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.

31. 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.

32. 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, ‘Hair or Beauty Salon Manager’, at Skill Level 2.  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.

33. In this case, the nominated occupation is ‘Hair or Beauty Salon Manager’ (ANZSCO 142114).  This occupation is classified as Skill Level 2 in the ANZSCO dictionary.  Therefore evidence of labour market testing is not required.

34. For these reasons, the labour market testing requirements in s.140GBA are not applicable.

35. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

    DECISION

36. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

    Michelle East
    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.