Shri Ganeshai Namaha Pty Ltd ATF Joshi Family Trust (Migration)

Shri Ganeshai Namaha Pty Ltd   ATF Joshi Family Trust (Migration) [2021] AATA 5565 (20 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Shri Ganeshai Namaha Pty Ltd   ATF Joshi Family Trust
REPRESENTATIVE:  Mr Reza Aein (MARN: 0955595)
CASE NUMBER:  1831929
HOME AFFAIRS REFERENCE(S):          BCC2018/264448
MEMBER:Peter Emmerton
DATE:20 December 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 December 2021 at 3:01pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Hair or Beauty Salon Manager – actively and lawfully operating a business in Australia – ASIC Registration details – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 October 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 16 January 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(b)(i) of the Regulations because the delegate was not satisfied ‘who the legal entity was.’
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity runs an expanding mid-sized multi located Beauty Salon business in Western Australia.
The visa applicant’s substantial responsibilities, formal qualifications, attributes, and extensive experience align with the duties of Hair or Beauty Salon Manager, ANZSCO 142114, Skill level 2.
The visa applicant possesses a Diploma of Leadership and Management gained in Australia and substantial practical experience in both her originating country and Australia.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the ENS Direct Entry stream (r.5.19(4)(h)(ii)) and the relevant fee was paid. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the business is operating on a moderate permanent and contractor based, staffing ratio of 15 positions across 5 sites. The Tribunal acknowledges that finding and subsequently retaining an individual with the visa applicant’s experience, qualifications and competencies may be very challenging. The Tribunal accepts as fact that there is a need to have somebody in this role with specific industry knowledge and experience.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Hair or Beauty Salon Manager ANZSCO 142114, under direct control of the nominator. The application has included the required written certification relating to conduct that contravenes s.245AR(1). Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(b)(i) of the Regulations because the delegate was not satisfied as to whom was the legal entity.
The Tribunal has formed a different opinion having carefully reviewed all the evidence available to it, presented by the applicant and through its’ interrogation of the ASIC websites and Taxation documentation provided.
ASIC Registration details for this business entity were researched by the Tribunal. The Tribunal checked the status of the listed ABN, 54 232 718 840 and perused the company web site. It was first registered 13 June 2012, is currently registered and is due for review on 13 June 2022. Evidence was provided to the Tribunal to demonstrate the existence of the Family Trust, (Trust Deed). Evidence was provided to demonstrate the change in business name following the dissolution of the initially established franchise agreement. Evidence was provided to the Tribunal to demonstrate that the confusion associated with ABNs and ACNs, claimed by the delegate in their decision, was not an issue of concern to the Tribunal.
The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour - hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has had regard to the most recent Employment Agreement dated 20 January 2020 and the detailed position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
It is noted by the Tribunal that the visa applicant has been employed for in excess of 5 years in the organisation.
The Tribunal notes that the business appears to have steady, substantial and growing revenues and profit, year on year. A brief downturn was experienced during the Covid-19 restriction period but as was ably demonstrated by the current BAS documentation the business has rebounded after only 1 less successful Financial Quarter.
The Tribunal accepts as fact that the business, like many businesses, was impacted as a direct result of Covid-19, as substantiated by the Financial Statements, associated with the Covid-19 pandemic, which quickly rebounded to normal revenue levels post lockdown. The Tribunal has formed a view that an organisation’s viability should not be judged solely upon the immediate financial circumstances which resulted from the Covd-19 pandemic. The long-term stability of the nominating entity in an ever increasing and competitive market attests to the nominator’s continued ability to operate successfully.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services, particularly in light of the nominators ongoing expansion across multiple locations. It is aware that the workforce is mobile, that the in-demand specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses.
The Tribunal is also cognisant of industry competitor’s actively targeting competing businesses and trying to poach key staff to overcome their staff shortages or obtain a market advantage. In addition, it is observed that these roles are not always highly sought after by appropriately qualified personnel as they are relatively modestly rewarded but also present complex and challenging interpersonal relationships, workloads, hours of operation and responsibilities. It is clear, that this has become even more difficult since the advent of the Covid-19 pandemic and the subsequent staff shortages because of the cessation of temporary and permanent immigration due to mandated border closures.
Current media and business reports associated with the analysis of consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This industry appears to be one such sector. The problem is exacerbated in regional areas or smaller States, particularly if an organisation is reliant upon temporary or permanent immigration as part of their labour source.
Business, Media, and Government reports are being circulated which indicate this is starting to be a drag upon business development. The Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.[1]
[1] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021
It is noted by the Tribunal that the most recent ANZ Roy Morgan Consumer Confidence and Business Confidence Surveys, (October 2021) shows an increasingly positive level of consumer and business confidence in the economy.
The recent Australian Institute of Company Directors, (AICD), Sentiment Index Report, published 15 December 2021, also demonstrates a positive trajectory for the economy and employment.
‘More than two-thirds of directors are confident in Australia’s 12-month economic outlook. Nearly two thirds (64 per cent) believe business will be on sure footing in 12 months time, with positive indicators like investment, turnover and profits expected to grow.
While the overall outlook from directors is positive, key challenges are emerging for the post-COVID era.
Directors have identified workforce shortages as the top economic challenge facing Australian businesses, above COVID-19, climate change and Australia’s relationship with China.’
The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s stated annual salary of $56,000, plus the current Superannuation Guarantee, as appropriate and is reflective of their experience relevant to the nominated position and the magnitude of the business. It was stated previously by both the nominator and the visa applicant that her current salary is $64,000, plus bonuses or commissions on sales and the 10% Superannuation Guarantee. It notes that it is in-line with the highest level of the current relevant Awards as are the conditions of employment and observes that the remuneration falls in the mid-upper quartiles of such roles.
The Tribunal has formed the view as a result of the Profit and Loss documents provide as well as the ATO Taxation documents and the current BAS documents, that the nominator is capable of employing the visa applicant for at least 2 years at the current rate. It again notes the previous 5 years of employment costs incorporated within the positive financial performance documentation.
The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
As previously stated, (paragraph 35), the Tribunal has been provided with the visa applicant’s current employment contract, stating a salary of $56,000 plus Superannuation at the current rate, (10%). Again, it notes the current salary is actually $64,000, plus bonuses or commissions on sales and Superannuation Guarantee. The Tribunal accepts that the nominee’s current annual salary as stated by the nominating entity, as reflective of the business magnitude, the visa applicant’s qualifications, the role they undertake and their experience.
The Tribunal researched the salaries offered for similar positions and accepted the salary research date presented by the nominator. The remuneration appears to fall within the mid-upper quartiles of similar positions on offer. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are located in regional Australia;
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size and scope of the nominating entity’s expanding business operations. This expansion, demonstrated by financial documents, coupled with the diversity of projects leads the Tribunal to accept that the visa applicant’s role is essential to the successful undertaking of the business and to ensure that customer expectations can be met whilst planning additional expansion.
The Tribunal accepts that a valuable part of the visa applicant’s role is to mentor the team, many of whom may be less experienced than the visa applicant. It appreciates that the nature of these activities demands extraordinary levels of compliance within specifications and must be 100% reliable as the future business transactions are critically reliant upon ongoing customer satisfaction.
It is self-evident that the nominator cannot operate this growing business entity without a substantial and relatively self-contained supervisory structure in place and the visa applicant is clearly 1 important member of that very small core team.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work full-time in the position under the nominator’s direct control.
The Tribunal received and accepted evidence from the nominator of the recruitment process undertaken and the ongoing challenges associated with recruiting and retaining suitably qualified employees. This included details of the recruitment advertising and associated receipts on a national and internationally operating electronic job site, as they were considered the most appropriate media. The nominator’s internal and external business network was utilised but proved unfruitful. The visa applicant was ultimately determined to be the only suitable candidate.
There are currently more than 6,000 related roles on offer nationally with an excess of 600 of them located within WA, according to one major employment website. The Tribunal is satisfied that a fair and honest recruitment process was undertaken.
The Tribunal observes that a substantially more comprehensive evidence base was provided to it, than was presented to the delegate at the time of their decision. This is in part due to the approximately 4 years which have elapsed since the original application was made, during which time the visa applicant has been employed by her current employer and promoted to Hair or Beauty Salon Manager, Skill level 2, ANZSCO 142114.
The Tribunal has formed the view that the “Satisfied” RCB requirements and the issued Certificate provide some weight in favour of the applicant, however this is not within itself a definitive result which must be accepted by the Tribunal. It must make up its’ own mind as to the relevance of the advice proffered. In this instance it is accepted as sound advice that should be considered in support of the nominator’s claims.
The Tribunal once again observes that substantially more corroborative evidence was provided to it, than was presented to the delegate at the time of their decision. The Tribunal, as stated previously, acknowledges the current employment market distortions created by the Covid-19 pandemic coupled with the Talent pool drain to the Eastern States. It is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The Tribunal notes that the delegate did not reject the application upon the basis of this regulation. Nor did they raise it as a concern in their decision.

The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 142114 for Hair or Beauty Salon Manager and the detailed duty statement for the visa applicant. It appears clear that the Duty Statement and the ANZSCO descriptors substantially align.
Whilst the visa applicant, would likely report performance in all KPI areas via established systems and seek input from the Director of the business, this coincides with the Tribunal’s expectations of a Hair or Beauty Salon Manager reporting to the Director or Executive Management of this business.
The position of Hair or Beauty Salon Manager, ANZSCO 142114, as applies to the visa applicant, is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal has had regard to the ‘satisfied’ Form 1404 issued by an RCB (WA Department of Training and Workforce Development), dated 7 May 2018 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton

Member
ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      ''identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2021] AATA 5565

20 December 2021

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness