SRAN AUSTRALIA PTY LTD (Migration)

[2021] AATA 2081

SRAN AUSTRALIA PTY LTD (Migration) [2021] AATA 2081 (19 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sran Australia Pty Ltd

CASE NUMBER:  1820681

HOME AFFAIRS REFERENCE(S):          BCC2016/3384746

MEMBER:Wan Shum

DATE:19 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2021 at 1:43pm

CATCHWORDS

MIGRATION – nomination approval of a position – Direct Entry Nomination stream – position of Hairdresser – nominated position could be filled by an Australian citizen or permanent resident – updated financial information – lawfully operating in Australia – impact of COVID-19 restrictions – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 362, 379
Migration Regulations 1994, 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 Home Affairs on 28 June 2018 to reject an application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 case, the application for approval of a nomination was made by Sran Australia Pty Ltd  (the nominator) on 12 October 2016 for the position of Hairdresser under the Direct Entry Nomination stream. The occupation was given as Hairdresser and Mrs Amrita Kaur Gill was identified as the person the nominator wished to employ for the position. Mrs Gill lodged a Subclass 187 visa application in respect of this nomination.

4. The delegate refused the application on the basis that the nomination did not satisfy reg 5.19(4)(h)(ii)(C) of the Regulations. The delegate formed the view that the application for approval has failed to demonstrate that the nominated position of Hairdresser cannot be filled by an Australian citizen or permanent resident who is living in the same local area as the business. As a consequence, Mrs Gill’s visa was refused.

5. The nominator and Mrs Gill have sought review of these decisions. The parties are represented in relation to the review by the same registered migration agent.

6. On 21 January 2021, the Tribunal invited the applicant to provide updated and current information regarding its operations. A response was received and then on 3 May 2021 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 19 May 2021. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

7. On 13 May 2021, the Tribunal was informed that Mr Dhanvir Singh would take part in the hearing. However, Mr Singh did not appear before the Tribunal on the day and at the scheduled time and place. Only Mrs Gill and her spouse participated by videoconference using MS Teams, with the representative at a different location. The officer assisting with the hearing was informed that Mr Singh could not take time off work so would not be participating. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5). There was no request for a hearing to be rescheduled or adjourned. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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). For the nomination to be approved, all the requirements must be met.

10. The nominator began operating a hairdressing salon in Griffith in mid-2015. The store was trading as Golden Scissors Hair and Threading Salon. According to the ASIC records provided, the sole Director is Mr Dhanvir Singh.

11. The application form for the nomination under the Direct Entry stream was completed with ‘Hairdresser’ as the position to be filled, and occupation of ‘Hairdresser’ (ANZSCO code 391111).

12. The organisational chart given with the nomination indicated that the nominated position reports to the Director and there are no other employees. The organisational chart provided on February 2021 remains the same.

13. The Tribunal has before it a copy of the financial statements for the year ending 30 June 2020 and the Company Tax Return. These documents indicate that the sales revenue has reduced since the nomination application was made, when comparing the figures to the financial statements given to the Department for the year ending 30 June 2017. While the Tribunal is aware of the impact of COVID-19 to businesses across Australia, and accepts that beauty and other salons were directly impacted by the business restrictions declared by the Commonwealth and NSW State government particularly from March 2020 onwards,[1] it notes that the sales revenue from salon services had decreased prior to March 2020 for every year since 30 June 2016, earning $62K in 30 June 2019 compared to nearly $81K in FYE 30 June 2016. 

    [1] COVID-19: a chronology of state and territory government announcements (up until 30 June 2020) – Parliament of Australia (aph.gov.au) (accessed on 20 May 2021)

14. The Tribunal sought further information regarding the business operations including a full current and historical extract from ASIC (listing shareholders), bank statements of the business for the past 24 months and payroll summary (listing all employees and wages paid). None of these were provided. It appears that the most recent period for which BAS was lodged in February 2021 was the quarter from 1 April to 30 June 2020. It does not appear that a subsequent BAS has been lodged for this business which added to the Tribunal’s concerns that the business was not actively operating.

15. The nominee confirmed that she worked as a hairdresser at Golden Scissors Hair and Threading Salon from June 2015 to March 2020. She only stopped working for the nominator because of COVID-19. Since August 2020, the applicant has opened her own business operating from the same location using her own ABN. The business is now called ‘Women’s World’. Mrs Gill claimed that Mr Dhanvir Singh had said that he was still willing to sponsor her. The representative also stated the same but given that Mr Singh did not make himself available for the hearing, the Tribunal has serious doubts about this. 

16. In any case, it appears to the Tribunal that the nominator has not provided sufficient evidence that it is currently actively, lawfully and directly operating a business in Australia. The Tribunal had requested a copy of the bank account statements of the business which would list recent transactions and would assist with a finding that the business was actively operating. This was not provided. The most recent set of financial statements was for the financial year ending 30 June 2020 and the most recent BAS was for the last quarter of that financial year, that is 1 April to 30 June 2020. There is thus no evidence of sales or payments made by the nominator from 1 July 2020 onwards.

17. This correlates with Mrs Gill’s evidence that the business ‘Golden Scissors Hair and Threading Salon’ effectively ceased operating in March 2020 following the restrictions imposed on businesses and that she began her own business operating from the same premises in August 2020 after restrictions lifted.

18. A copy of the lease agreement for the shop indicates that the lease was varied and is effective until 21 June 2025. However, as the same copy of the agreement and variation was given to the Department, it appears to have been agreed to prior to the review application being made. It is thus unclear whether the lease is still in effect and noting that Mrs Gill is now operating ‘Women’s World’ from that premises. There is therefore no current and reliable evidence before the Tribunal which indicates that the nominator is actively and lawfully operating a business in Australia. Accordingly, the Tribunals finds that the requirement in r.5.19(4)(b) is not met.

19. While Mrs Gill and the representative claim that Mr Dhanvir Singh is still willing to sponsor her, the fact is that the nominator is not operating a business at the time of this decision. The Tribunal acknowledges claims that the business was operating up until March 2020 but closed due to the COVID-19 outbreak. This is unfortunate. The Tribunal also acknowledges that nearly three years have passed since the application for review was lodged. The representative suggested there would have been a different outcome if the review had occurred earlier, but it is not possible to say that with any certainty noting that a number of requirements need to be met in order for the nomination to be approved under r.5.19(4). While the Tribunal appreciates that the nominee, Mrs Gill, has worked at the salon for some time now and was dedicated to carrying out her work there as a hairdresser, the Tribunal can only approve the nomination if there is evidence that all of the requirements in r.5.19(4) have been met at the time of its decision.

20. The nomination did not seek to satisfy the criteria in Temporary Residence Transition Nomination stream, and the requirements in r.5.19(3) have not been met. Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Wan Shum
    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 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)       both 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;

    (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 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).