SHASHI BEAUTY SALON PTY LTD (Migration)

[2021] AATA 404

SHASHI BEAUTY SALON PTY LTD (Migration) [2021] AATA 404 (15 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SHASHI BEAUTY SALON PTY LTD

CASE NUMBER:  1801675

HOME AFFAIRS REFERENCE:               BCC2017/2130780

MEMBER:Lilly Mojsin

DATE:15 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 January 2021 at 3.05 pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination – Hair or Beauty Salon Manager – employed in the position for at least 2 years – invalid s.375A certificate – Integrity Site Visit and Interview Plan – financial capacity to maintain future employment of visa holders – discrepancies between salary payments and salon opening hours – Centrelink subsidised workers and trainees – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 Immigration on 9 January 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 16 June 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.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: r.5.19(5).

3. In this review, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream. A nomination is made in respect of a particular, single position, rather than an occupation or the person who will fill that position.

4. The nominating business Shashi Beauty Salon Pty Ltd (ABN: 12 141 814 619) [applicant] lodged a nomination for the occupation of Hair or Beauty Salon Manager - 142114. The nominee was Amarpreet Chawla[1].  The applicant operates hairdressing and beauty salons at various sites across the greater Sydney area.

   [1] AAT 1805145

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(c)(i)(A)(II) of the Regulations because the delegate was not satisfied the nominee worked in the occupation of Hair or Beauty Salon Manager.

6. The applicant appealed that decision to the Tribunal, attaching a copy of the Department decision to the application for review.

7. The applicant, represented by its director, Sashi Grover, appeared before the Tribunal on 23 January 2020. The Tribunal held joint hearing of applications 1716221, 1801675 and 1804604 for the applicant to give evidence and present arguments. These applications related to nominations by the applicant for positions of Hair or Beauty Salon Manager and Hairdresser.

8. The Tribunal also received oral evidence from the nominee[2], at a joint hearing held on 23 January 2020.   

   [2] AAT 1805145

9. The Tribunal also held a hearing on 13 August 2020 jointly with 1804604, 1801675 and 1913553. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant.

10. The applicant consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The delegate stated in the Department decision that the applicant has not demonstrated that the nominee has worked in the nominated position of Salon Manager as a SC457 holder for at least 2 years and the nomination does not meet r. 5.19(3)(c)(i)(A)(II)

    The applicant submitted to the Tribunal the following documents:

    ·Letter from accountant – confirming payroll              

    ·Nominee resume (undated)

    ·Applicant Submission to Tribunal 17/01/2018  

    ·Applicant Position Analysis Report  

    ·Company Tax Return FY17  

    ·Written submission from applicant to Tribunal (undated)

    ·Certificate of Registration of Business Name           

    ·Visa grant notice 19/03/2014   

    ·ANZSCO Profile  

    ·Approval of nomination 30/11/2017  

    ·Letter of Employment 08/06/2017  

    ·Payroll FY17-18  

12. At the Tribunal hearing the applicant, the Tribunal advised the applicant when reviewing this Department decision, the Tribunal must look at all the criteria in r.5.19.

13. Ms Grover, on behalf of the applicant, stated that she has a number of shops. The company no longer has the Merrylands kiosk in Merrylands or St Marys.  Profit and loss is assessed for the whole business across all the shops.  There are 4 trusts and the trust money is deposited into the main accounts. Each trust covers 3 shops.  Ms Grover’s husband, Mr Grover, is in charge of weekly wages and all administration of the business. 

14. The applicant stated that she buys all the products and negotiates the prices. All managers ask her on a weekly basis for supplies and if there is any problem she looks after the issues. The managers have the rosters and each store has different prices and specials. They ask her if it is alright to do something and she says “yes”. The managers do the roster and sometimes the specials. Each story is done differently as sometimes there are different prices and different specials. Her managers say to her “I want to do this and I say it’s all right, they do the communication in the shopping centre and also on Facebook.  They send it to her, she checks and if there are any customer complaints or any problems and the manager cannot sort it out or they want to speak to the boss then “I am there”. If someone is sick and cannot make it to the salon they call her and she has to step in and change things around. It was put that she is the ultimate manager for all shops and she agreed. She said she is also a beauty therapist and she can do her work as well.

15. The applicant now has 10 shops, the 10^th opened in March this year, it will be under a different name called ‘Soho Beauty Bar’. So there will be 2 brands in the same shopping centre.  She wants to expand the business more.

16. When put that the company’s net profit was very small, she is only making $30,000 net profit, she said that she and her husband live with their son and they have their own house which is rented. She and her husband also take a salary from the business. Salaries for the associated persons in the financials are for both her and her husband.

17. The Tribunal noted that the rents had expanded from $300,000 to $900,000. The applicant  said they have applied for a decrease in the rent. It was put that the company is not increasing profits, the net assets are in minus to half $1 million. Mr Grover explained that they are expanding the business.

18. The Tribunal referred to an Organisational Chart and asked about the 5 managers employed.  The applicant said that Asha Rani manages Carlingford and Parramatta.  Asma is a part time beauty therapist and hairdresser, Manpreet is a beautician and a permanent resident. At Parramatta Ranjana is a hairdresser, Tamana is full-time. Navjot manages Penrith and Mount Druitt, Amandpreet manages Blacktown and the city.  Shipra is a citizen, full-time. June is part-time, employed for hairdressing and beauty. Rebecca is part-time, and a temporary visa holder. Harpreet is a student. Sonali is permanent and a citizen. Soriya is full-time and permanent resident. Sampreet is full-time permanent , Antul part-time permanent residents,  Jaskun is part-time student, Satvinder is permanent resident, Daljeet part time, Amandeep is a hairdresser temporary resident, Sana is a part-time permanent resident, Sherie is a part-time permanent resident, Sorita is a student, Indy is a resident.  Chetna Ben managers North Rocks and Top Ryde and Kulwinda Kaur just manages Liverpool.

19. Asked how she works out who works where, she said that when people go on leave she has to shuffle them around. They are normally employed for a particular shop but if there is any problem she has to shuffle them around. The applicant does the recruitment of the managers plus the girls. The girls give new starters a trial, the girls let her know what is happening and she tells them okay. They give her the reports of what they want to do, the applicant makes the ultimate decision. In regard to advertising now a lot of girls come and leave their CV in the shop and so the manager will bring a girl in and give the girl a trial and if she is good, the manager lets her know and then she organises their employment. The applicant also does the firing. Asked who handles the disputes she said the managers do, if they can’t handle tough clients then she will handle them.

20. The applicant said that some of the staff don’t want to listen to the manager and sometimes they take their numbers and do private work for them. If they don’t follow the rules, she gives them a warning. Staff in the shop ring the managers but if the managers don’t answer the call then they give her a call or the manager gives her a call and she works out where the girls are going. As for the skills of each manager, she said they all have a diploma and they all have beauty and hairdressing as well. To manage this they have to know the trade. Especially if some client has any problems she goes and fixes the problems. 

21. The managers are all paid the same salary, it is $54,000 per annum. She is always in contact with the managers by phone.

22. The applicant has a 5 year contract on the rentals, the main salons are making money but she has to keep some shops going because of the rent. In Liverpool and Parramatta she has managed to cut down the rental. Before business was booming and she found out she made a mistake with a few shops and all profits are going to those shops. That is the reason why she started a new brand and she now knows what to do and bargain with the leasing officer in order to make money. Westfield’s fees and charges are her greatest expense and that is what she is negotiating, even in Penrith she managed to get the rent down. She will be introducing the lower brand, Soho. She will also be reducing the size of the shops but in a better location.

    Joint Hearing 1805145 [nominee] and 1801675 [nomination].

23. This was a joint hearing for approval of the nomination of a position of Hairdresser and the associated nominee’s visa application [1805145]. The Tribunal discussed s375A certificate. The Tribunal informed the applicant that the documents rated to the site visit that was disclosed to the applicant in the Department decision. The Tribunal advised the applicant that the documents were an Integrity SITE Visit and Interview Plan, a post site visit report stating that it covered various applicants details from department records, internal department operational notes and covered site visits for the beauty salon on 21 November 2017 and internal site visit notes and department photos of stores. The Tribunal advised that it considered the certificate invalid and disclosed that the documents covered possible questions to be asked and an interview plan. The post site visit interview report indicated the applicant Director was not present during the visit and the photographs taken were shown to the applicant. The applicant confirmed that the photographs were of her store. The Tribunal further explained that the information covered by the certificate was outlined in the Department decision.

24. Asked how she was going to open the new Soho brand stores when she is not making very much money she said all the leases are finishing, all are coming down and she will be able to renegotiate with management, they realise it because everybody wants to leave.

25. It was explained to the nominee that her application was dependent on the approval of the applicant’s application before the Tribunal. The nominee said that she worked at Blacktown on a full-time basis, she works six days and she has Tuesdays and alternating Sundays off. In her absence other staff work. There is Shipra full-time and June part-time. There are casual staff, Sarit and Sherry and they work when it’s busy. She also manages the city branch. She goes on Monday and Wednesday into the city. They are not open on weekends she has a Diploma in Salon Management. She started working from 1 April 2014 and her salary is $54,300 per annum. She said that she started managing in the city in January 2018. She did a small Diploma in Beauty when she was in India.

26. Asked about her duties, she said she does promotional activities, conversations with her staff, marketing coordinator, setting up prices for salon setting up the specials and working out the financial transactions on a daily basis. She looks after the customers if there are any complaints, does the roster, manage staff hours. Asked for the number of staff per day she said there is 2 full-time in Blacktown and on weekends 3 or up to 4. On Monday there is 2 staff at Blacktown, Shipra and Cherie. On Tuesday June is working. On Wednesday Shipra works and Sarita. On Thursday Jen starts in the morning and Shipra does afternoon for the long hours and in between Cherie and Sherita. Friday Shipra and Sarita.  She works there on a Saturday and June works there. On Sunday there is 2 staff, a few hours Shipra does in the morning and then Rebecca.

27. Asked about the promotional activity she says she researches latest trends in the Salon Industry and puts specials on marketing page of the Centre. Asked how long it would take her to do to put marketing on Facebook she said that it does not take long.  It is about the overall picture and they put ads for Mother's Day or Christmas.

28. Asked if Blacktown had its own Facebook page she said no, it is the Sashis Facebook page. Asked if this was done weekly or monthly she said monthly. Once a month she would check out the Facebook page and change the charges or promotions. She said she would send an email to the marketing manager of the Centre and hand over flyers or posters to them. She also does customer satisfaction, that is to make sure that the appointment is on time. As she has qualifications in beauty, she also works in the salon as a beautician as well. Not all the time but if needed. Asked what else she does, she said that she does financial transactions that is she balances the till and if eftpos receipts. She enters all the income for the day. She enters the eftpos records and personal information about clients. She keeps a record of products used for the clients. Asked if other staff do this too, she said they do not as they are mostly busy.  They enter a manual card and she puts it into the computer system. Put that she prepares the client profile. She agreed. She said that if any customer has a complaint she will deal with it. Asked how many complaints per week she may deal with she said 2. Asked what beauty treatment she does, she said she does eyebrows, waxing, tinting that is the small jobs. She said that she does not do facials, hydrodermabrasion or spray tans.

29. The applicant stated that she herself did the tattoos. It was put to the nominee that once a month she enters information on Facebook and at the end of the day she does balancing of the till and does data entry of customer information, promotions for quiet days and reduces the fees by 10%. It was put to her there are so few people that work in the salon that it is implausible that she would not be doing more of the other beauty treatment than just some eyebrow waxing and tinting. She said they are inside and if anybody comes into and asks for products she is there, she cannot do long services outside.

30. The Tribunal put that as it is a small salon this suggests that she does all the treatment. She said if they need something, she will do it but she mainly does the small treatment. She then agreed that she was doing threading and tinting. It was put to her that she is a beautician who does some amount of administration in addition and that Sashi Grover manages the whole business and also does the tattoos. She said that she also receives stock and puts it away and it was put to her that the other staff would do that as well. She said that she orders the stock. She said that when they order they use a client number as they know the market for their salon. Asked how she ensures compliance with occupational health and safety regulations she said she will make sure that the floor is not slippery and everybody is not wearing tight shoes. They have a fire extinguisher and she checks when it is to expire and will update it. She also checks the basins. Asked about the products Sashi Grover provides to the salon she said when they run out she will check on a weekly basis what stock is needed. When they have staff meetings, they are advised what sort of products are coming into supplies.

31. Asked why she would be ordering from suppliers when Mrs Grover has arrangements with suppliers and they buy their supplies in bulk, she said they do not get all the stock from Sashi.  Not their type of supplies.

32. In regard to the Facebook page, she updates it once a month. The Tribunal put that the Facebook page does not separate individual stores, she said “we write on a post which promotion is running in which store”. Asked her how long it took to do this she said it doesn’t take long, about ½ an hour, but to prepare takes more time.

33. Asked who looks after the Internet site, she said “it is just there, we have an update”.

34. In relation to the documents lodged with the Tribunal about posts on Facebook she was asked about a post on 4 August 2018. She said for 6 months she was on maternity leave. On 12 January 2019 she sent an email to somebody and somebody responded about a promotion. On 26 April 2019, she sent someone about a poster to Top Ryde. She explained she was managing there for a few days due to leave. There was also an application for employment. It was put that she occasionally does some management but does beauty work and a small amount of management. Asked about a range of emails she had provided to the Tribunal, she said she just took a sample of random emails. Put that the random emails do not suggest that she spends 7 hours a day on management work as it would be financially prohibitive to just have a manager with so few staff. Put that to be a retail manager she should be spending the day doing management work. She said she does the roster. It was put to her she does the roster for 1 or 2 salons with 2 staff and 2 or 3 casuals and it would only take her ½ hour per week. It was put that she is clearly working as a beautician. The Piccadilly salon is not open week ends and most of clientele would come in at lunch time or after hours and it would not be financial to have someone doing management and not doing the work of the beautician.

35. Put to applicant that the position appears to be a beautician in a small salon that does not need a manager but needed beauticians and hairdressers to do the money generating work. She said there is a lot of management work in the salon and she does not have time to do all of that, there are so many little things and every time something happens there and the manager has to do all the things to do. In the salon they need so many things done. With other staff they have no responsibility. It was put to the applicant that she has all the responsibility and she has one full time person who has the responsibility of balancing the till, checking stock, contacting her and she is the one who makes the decisions for those businesses. She responded yes if they cannot make decisions. It was put that she makes all the financial decisions and the expenses associated with that. All the managers do hairdressing and beauty with a component of management. She said that she was approved for the managers for 457 visas for those positions. It was put that the managers are not managing according to ANZSCO and she has a fulltime person who is working there and knows what is going on daily.

1. The nominee said if someone comes for employment the beautician or hairdresser in the salon do not have the experience. It was put that this might occur every now and then. She said they look on the resume and she asks them to come for a trial. Asked why she would do that if the business is not able to employ them. She said we need to put on more casuals. She said they have staff meetings and know what is needed. It was put that she does not make those decisions, it is Mrs Grover who makes that.

2. The applicant said that the nominee has been away having a baby on maternity leave and she had a lot of problems when she was away and that is why she realises she needed a manager, particularly in regard to the cleaning and if manager is there they make sure everything is working properly.

3. Post hearing the applicant submitted the following documents:  

   • SMG Accountants dated 21 January 2020 advising four trusts paid the expenses of the applicant
   • Financial statements of applicant 2017 showing net loss of $128 257 and 2016 net loss of $103 566
   • Wage details for FY 2017-18 and 2018-19
   • Business Plan for applicant
   • Numerous BAS certificates   

   JOINT HEARING 1716221, 1801675, 1804604, 1913553 on 13 AUGUST 2020.

4. The nominator applicant, by its Director Sashi Grover, gave oral evidence in respect of all the nominations.

5. The Tribunal asked the applicant how many stores were working until 10 March 2020. She stated there were 10 stores.  The Tribunal asked the applicant how many hours each store worked. She stated the hours worked for each store. The Tribunal estimated this was about a total of 575 hours per week. The applicant agreed.

6. The Tribunal confirmed that of the 4 nomination applications before the Tribunal, 1716221 and 1804604 were for approval of position of Hairdresser, whilst 1801675 and 1913553 were nominations for approval of position of Hair or Beauty Salon Managers. The Tribunal explained that it had to be satisfied that the nominees, working in those roles as guided by ANZSCO, during their 457 visas had worked in the role and if found that they did not do so, then there is no entitlement for the visa.  The Tribunal said that wages paid were important because payment of all staff in the applicant’s business and it affects the overall assessment of the applicant’s ability to pay the intended nominees for the required 2 year period.  It also went to the question of whether the nominees also work in other roles ie were the managers working for the applicant in other roles, as well.

7. The Tribunal advised the applicant that a sample of weeks had been taken by the Tribunal from the information provided to the Tribunal [by submissions made in 1804604, 1716221 and 1801675] in documents called ‘salaries and wages paid’ to the staff and this was compared to the opening hours for all the salons.

8. The Tribunal noted that the applicant’s Director Sashi Grover advised that she did not work in any salon and she managed the business and just goes wherever she has to be.  The Tribunal advised that giving the applicant the benefit of the doubt and accepting that Daroom Grover and Samproot Grover were 2 family members who both worked 38 hours per week, the Tribunal had assessed for the week ending 18 July 2019, 380 hours were worked by full-time staff, and the rest of the staff were paid less than 38 hours. The total of part-time staff for that work appeared to equate to 144.5 hours, and this was a total of 524.5 hours worked by all staff. It was put that the hours paid for do not equate to 575 hours and therefore the working hours paid do not equate to opening hours of salons. The applicant said that the salons open and they need to keep salon open and they come and do jobs. It was put that it appeared there was not enough people working in these salons for the opening hours of the salons ie it does not appear there are enough people working in the salons when they are open. The applicant responded that they come and go. Some girls come from training schools and they work like that. It was put that if one adds up the hours it does not appear staff are paid for all their hours. It suggests in each salon the applicant has only one person most of the day and the managers are not managing, they are doing everything. The other staff are coming in to backfill. Alternatively the full time staff are working more than 38 hours. It was put that the figures do not add up.  The applicant then said the 10^th salon was opening in November.

9. The Tribunal discussed the week ending 7 January 2020 where salaries were paid for 6 full-time staff working, 2 family members or 304 hours and part-time staff worked 182 hours ie. 486 hours over 7 day week or 69.4 hours worked per day and divided by the number of salons was 7.7 salons per day.  During that week the stores were all opened or it appeared that 486 hours were paid for all staff but all stores were open 575 hours.  Ms Grover said they start early and they make an appointment. It was put that if the salons are open for 575 hours the salaries paid are less for the opening hours of the salon. The Tribunal said that this suggested her managers and hairdressers are doing the work in all the salons as the paid hours do not match the opening hours of the salons.

10. The adviser put that the questions are technical in nature and there is no way for the applicant to pin-point the hours and the applicant should be given the opportunity to respond and provide a written explanation. The Tribunal agreed to give the applicant additional time to make a submission. The adviser referred to the organisation chart and said that the staff duties are in accordance with the organisation chart.

11. The Tribunal put to the applicant that payroll records show a number of people work 38 hours in different salons and each salon is open for longer than 38 hours, so there are other people working in the salon when the manager is not there but the records do not reflect this. 

12. The applicant explained they get that a lot of girls came from schools, they are training and so they come to work. They are not paid. They are required to obtain 300-400 hours work in the salon, so they fill up the staff gap. It is compulsory for them to do the work to get the diploma. The Tribunal put to the applicant that it appeared that the business is dependant on people that are not being paid a salary. The applicant said she does not have to pay and they have to come and ask. It was put that the girls would have to be supervised. The applicant said the manager is there as she is there too. They are insured from where they come TAFE or a private school etc. She said if she does not work like that she cannot survive. She said these days it is very hard, especially with COVID.  All her businesses are impacted by COVID and this is affecting her health.

13. She said the girls need experience and she needs staff. The schools are very thankful that she takes the girls. Asked how many she had in a particular week she said that she cannot say, they might do 4 hours. She does not keep any records, they give a form from the college to the manager and the manager signs for the hours the girls have worked. She does not get a letter from the College, she just gets a phone call. It is the responsibility for the girls to find a salon, so they come 4 hours a couple of times a week.  It is mostly for beauty but for hair also.

14. Asked if she keeps records of attendance at each salon per week for her staff. She said she does. She also said that she had disabled people, the government pays her to give the girls work and the company pays her. They are doing a beauty course or hairdressing course. Asked for the records about these staff, she said she does not have any records.  She could not remember the names of the agency, but the agency paid them. She has so many girls doing this work. Asked if this arrangement was in place for the last 2 years, she said it has been going on for the last 10 years. There was one girl who was with her for nearly one year or so. There was another girl who was abused, she was a hairdresser and she worked for nearly 2 years for her and she was paid by Centrelink. Maybe it was last year that she worked for her. She cannot remember when the girls came, in so many years she had so many girls come and go. That is how she got so much help and the manager is there to watch and help them.

15. The Tribunal advised that it would give the applicant additional time to respond. The Tribunal repeated to the applicant  that the payroll for the amount of money paid for salary and the opening hours of the salons suggests staff are doing other roles in addition to their ANZSCO guided role and she may not be in a position to pay them as her business does not appear to pay people for all the hours people are working.  The Tribunal indicated it had assessed the salary paid for random weeks before March 2020. The Tribunal indicated it had looked at a sample and these weeks were 18.8.19, 7.1.20 and 18.2.20.  The issue was that it appeared that the actual hours worked were about 575 hours opening hours and the payroll did not appear to reflect that. The Tribunal indicated it did not take into account the salary of Mr Grover as he does not work servicing customers in a shopfront.

16. The advisor referred to a nomination by the applicant for another employee that was approved and stated that it was based on the same set of financials and it should serve as a precedent. The advisor submitted that the Tribunal should give weight to the time that the nominees have been working to date. The applicant said that she has been suffering waiting for Tribunal and Department to approve. It is mental pressure and trauma on herself and the nominee. The Department visited the office and took evidence from a student and apprentice and never interviewed the employer or the manager.  Covid19 brought small businesses to their knees. The nominator is still hiring the nominees and paying them wages. That in itself is best proof she is financially capable.

17. The applicant said that if the Tribunal is not going to approve the nominations, she will close her doors and declare bankruptcy, without these girls she cannot handle the business anymore.  She has been helping the Aussies to help the disabled girls, she has helped them a lot. She is always ready to help. Legally she does not have to pay them.  She has so many salons and has to run a business.  She is helping them and that is why she hired them.

18. A post hearing submission dated 3 September 2020 provided the following information to the Tribunal

    §Client Testimonial for Hairdresser at Top Ryde Amandeep

    §Google Reviews

    §Client Testimonials for Manager at Blacktown Branch 1 – Amarpreet

    §Letters from Trainees regarding the Training at Shashi Hair & Beauty

    §2 x Youtube Links of Client Testimonials for Hair & Salon Manager

    §Statement from a client regarding the Hairdresser at Top Ryde

    §Letter from Trainee Parramatta

    §Photos and videos of hairdressing services for clients

    REASONS AND FINDINGS

19. The issue in this review is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

20. Section 375A provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than the member of the Tribunal constituted to the review. The certificate, in the Department file, related to Trim Numbers ADD 2017/2317376 site visit referral notes, OPD 2017/494077  site visit plan and questions to be asked, OPD 2017/555164 site visit notes, OPD 2017/555164 site visit photos and CLD 2018/6474775 file that stated it 'relates to applicant details from Department Records, Internal Operational Notes and information about a site visit. The Tribunal finds that this certificate is invalid as it merely describes the documents or information to which it relates rather than specifying any reason why the disclosure of the documents or information would be contrary to the public interest.

21. The Tribunal informed the applicant that the documents rated to the site visit that was disclosed to the applicant in the Department decision. The Tribunal advised the applicant that the documents were an Integrity Site Visit and Interview Plan, a post site visit report covering various applicant details from department records, internal department operational notes and covered site visits for beauty salon on 21 November 2017 and internal site visit notes and department photos of stores. The applicant was explained details of the visit, that the information was contained in the Department decision, that the applicant was not present during the site visit and photographs that were taken were confirmed by the applicant to have been of her salon.

22. The Tribunal has assessed the external market salary data for the position, Hair and Beauty Salon Manager. It indicates an average salary for a Hair and Beauty Salon Manager is $53,706 per year in Australia. According to the job advertisement site Indeed.com.au[3], the nominee’s current salary is in line with the market rate for comparable roles.

    [3]

23. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

    ·    the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

    ·    the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

24. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)).

25. The Tribunal is satisfied that the nominee, in the period of 3 years immediately before the nominator made the application, held one or more Subclass 457 visas for a total period of at least 2 years and she has been employed in the position of Hairdresser in respect of which she holds the Subclass 457 visa for a total period of at least 2 years (not including any period of unpaid leave) and the employment in the position has been full-time and undertaken in Australia. Subparagraph 5.19(3)(c)(i) is met.

26. Regulation 5(3)(d) requires that for a person to whom subparagraph (c)(i) applies:

    (i)the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

27. The applicant’s financial returns, provided to the Tribunal, show that in 2017 the applicant’s net profit was $(128 257). In 2018 it was $30 333 and in 2019 it was $29 803.  The applicant’s net assets were 2017 $(599 701), 2018 $(569 369) and 2019 $(539 566). The applicant’s salaries for staff and associated persons plus superannuation was in 2017       $1 052 225, in 2018 $1 032 958 and in 2019 $790 180.

28. In regard to the financial position of the applicant, the Tribunal drew to the applicant’s attention that a sample of salaries and wages for 3 different weeks, extracted from the Wage details for FY 2017-18 and 2018-19,  when compared with opening hours for all the salons  appeared to indicate that the salaries and working hours paid to the staff did not appear to equate to the hours that the salons were open.

29. The applicant advised the Tribunal that the company has a lot of girls who come to work for her salons and those girls are required to work in total 300-400 hours. The applicant said that they fill up the staffing gap. They work sometimes 4 hours per week. The applicant does not have to pay them and their insurance is covered by TAFE or private schools where they are studying. She also said that she had working for her disabled staff on various programs, they were paid by Centrelink or some companies. She said if she does not work like that, she cannot survive. The applicant was unable to explain to the Tribunal how many students and other non-paid workers worked for the company and how many hours they worked per week. She said that she did not keep any records of their attendance.

30. The applicant requested the Tribunal to provide her with additional time to respond to the Tribunal’s concerns regarding hours worked by all staff and salary payments made. This was granted. Post hearing the applicant submitted a Client Testimonial for Hairdresser at Top Ryde Amandeep and Client Testimonials for Manager at Blacktown Branch 1 – Amarpreet, Google Reviews from satisfied customers, Statement from a client regarding the Hairdresser at Top Ryde, 2 x Youtube Links of Client Testimonials for Hair & Salon Manager and photos and video and hairdressing services being provided to customers.  The Tribunal accepts that the applicant has numerous satisfied clients across various sites and that the nominee provides hairdressing services and is competent to do so. The Tribunal notes that the applicant claims it rotates all its employees amongst the saloons, if the need arises. But the post hearing submission did not address the issue identified, at the Tribunal hearing, that the salaries paid to staff across all the salons did not equate to the opening hours of the salons or hours worked.

31. The Tribunal has considered letters from Trainees regarding the Training at Shashi Hair & Beauty and a Letter from Trainee Parramatta.  The Tribunal accepts that the applicant has been providing training to various trainees who are satisfied with the training they received.

32. The Tribunal accepts that Covid19 brought many small businesses to their knees. The Tribunal notes that the comparison of salaries with salon opening hours that was drawn to the applicant’s attention were a random sample taken from weeks prior to COVID19. The Tribunal accepts that the nominator is still hiring the nominees and paying them wages. The Tribunal does not accept that this fact indicates that the applicant’s business is financially capable because Ms Grover has stated that without the trainees filling the gap ie the opening hours of the salon are maintained by utilising the services of unpaid trainees, and other subsidised staff, she would not be able to survive.

33. The Tribunal accepts that the applicant is expanding the business, moving over to a cheaper brand Soho. But the Tribunal is not satisfied the applicant has provided sufficient information regarding the number of staff employed in each store at any one time, their weekly working hours and the gaps that were required to be filled by trainees and other non-paid workers. The applicant did not address the Tribunal’s concerns that it appeared, when looking at the total hours the salons were open and comparing those hours with the salaries paid to the staff, that the staff were working more hours than they were paid. As for non-paid students and variously funded workers, the applicant stated that she does not have records of the people who have worked in this capacity. The applicant has not provided any information about their hours of work, location etc that would demonstrate how these people filled the gaps in working hours. The Tribunal is of the view that this information is available to the applicant but has not been provided to the Tribunal.

34. The Tribunal notes that Ms Grover stated that legally she does not have to pay the students and she is helping them, that is why she hired them. She said they are managed by her managers. The Tribunal accepts that Centrelink subsidised workers and trainees are not required to be paid but the applicant has not provided any evidence to the Tribunal about  which salons train those people and who is supervising them. The Tribunal notes that these workers are not insured by the applicant but are insured via their colleges. Despite providing a Business Plan no reference to this group of workers is referred to in this plan and how they impact on the business.

1. It is of great concern that the applicant has stated that her business is unable to survive without having unpaid work experience students or other subsidised workers filling in the gaps for the lack of employed staff. While Ms Grover told the Tribunal that she keeps records of attendance at each salon per week for her staff she did not provide this information to the Tribunal after the hearing, despite it being brought to her attention that this information was relevant to assessing the application before the Tribunal.

2. On the information before it, the Tribunal is not satisfied that the applicant’s employed staff in this business are not working in excess of their hours. The adviser referred to the organisation chart and said that the staff duties are in accordance with the organisation chart. The Tribunal is unable to place any weight on the organisational charts provided, to the Department and Tribunal, as the charts do not indicate days worked or weekly working hours of each employee.

3. The Tribunal notes that the applicant’s salary and wages payments have been decreasing over the 3 years, being in 2017 $1 052 225, in 2018 $1 032 958, and in 2019 $790 180. The Tribunal is not satisfied that the salaries paid to the employed staff correlated to their working hours, and as the financial information indicates that the applicant makes a small profit, about $30 000 per annum, the Tribunal is not satisfied that the applicant is paying its staff their requisite wage for the hours worked and the Tribunal is not satisfied the applicant has provided full details of its financial position.

4. The Tribunal has considered the evidence of the applicant and the nominee that the nominee has been employed with the applicant for a number of years. As the applicant has not provided information to the Tribunal about its rosters or hours and location of its workforce, paid and unpaid, the Tribunal is unable to place weight on this evidence when assessing whether the applicant is able to meet cl. r.5.19(3)(d)(i).

5. Therefore, the Tribunal is not satisfied that the applicant has demonstrated to the Tribunal that it has the financial resources to pay salary for all its staff for the opening hours of the salons, all of which are open 7 days per week, except for a salon at the Piccadilly Centre. The Tribunal is not satisfied that the applicant therefore has the financial resources to pay for the nominee and that she will be employed on a full-time basis in the position for at least 2 years.

6. The advisor referred to a nomination by the applicant for another employee that was approved and stated that it was based on the same set of financials and it should serve as a precedent. The Tribunal has serious concerns regarding how many students and disabled persons have been working in this business at any one time and is also concerned about whether the current visa holders are working excess hours and how much they are being paid. The Tribunal is satisfied that the applicant has not fully disclosed its financial position. Therefore, the Tribunal places no weight on this nomination approval by the Department.

7. The Tribunal is not satisfied that the nominee will be employed on a full-time basis in the position for at least 2 years therefore the Tribunal is not satisfied the applicant meets r.5.19(3)(d)(i).

8. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved.

9. Therefore, the Tribunal must affirm the decision under review.

   DECISION

10. The Tribunal affirms the decision under review to refuse the nomination.

    Lilly Mojsin
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.