The Beauty & Brow Parlour Pty. Ltd. (Migration)

[2019] AATA 4135

The Beauty & Brow Parlour Pty. Ltd. (Migration) [2019] AATA 4135 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Beauty & Brow Parlour Pty. Ltd

CASE NUMBER:  1810704

DIBP REFERENCE(S):  BCC2017/1527150

MEMBER:Phoebe Dunn

DATE:29 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 29 August 2019 at 9:40am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Direct Entry Nomination stream – Hair or Beauty Salon Manager – training requirements met – nominee employed full-time in position for two years – financial capacity to employ nominee for two years – employment extension not precluded – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 245AR(1), 359
Migration Regulations 1994 (Cth), rr 1.13, 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 10 April 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 27 April 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 case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i) of the Regulations because the applicant failed to provide sufficient supporting evidence that it had met either Training Benchmark A or B during the period of the Standard Business Sponsorship approval, and further that there was no claim or evidence to support disregarding these requirements under r.5.19(3)(f)(ii).

5. The Tribunal received an application for review on 16 April 2018. 

6. On 25 June 2019, the Tribunal wrote to the applicant. The letter invited the applicant to provide information to the Tribunal pursuant to s.359(2) of the Migration Act 1958 (the Act). Specifically the Tribunal invited information to be provided demonstrating that the business currently met all relevant criteria in r.5.19(3), including but not limited to, the particular criteria that the Department had found were not met. The Tribunal provided a copy of r.5.19(3) for reference. The Tribunal requested that the information be provided by 9 July 2019, noting that an extension of time to respond could be requested but that this would need to be made by 9 July 2019. Finally, the Tribunal advised the applicant that if the requested information was not received by the due date (or by the extended due date, if an extension of time was requested and granted), then the entitlement to appear at the Tribunal hearing would be lost, and the Tribunal may proceed to make its decision on the available evidence without taking further steps to obtain the requested information.

7. On 9 July 2019, the applicant responded to the request for information under s.359(2) of the Act, providing submissions and further documentary evidence in support of its claim.

8. On 20, 21 and 22 August 2019, the applicant responded to a request from the Tribunal for additional information, providing further submissions and documentary evidence in support of its claim.

9. The applicant was represented in relation to the review by its registered migration agent, Mr Andy Nurpuri.

10. 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

11. The issue in this case 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.

    The application must be compliant: r.5.19(3)(a)

12. Regulation 5.19(3)(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 relevant person and occupation.

13. Based on the information on the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee.

14. The application for approval also identifies Mrs Kamaldeep Kaur, the nominee, who according to Departmental records, held a Subclass 457 visa from 20 August 2014.

15. The occupation identified in the application is that of ‘Hair or Beauty Salon Manager (ANZSCO 142114).  The Tribunal is satisfied based on the employment documents for the nominee, that the occupation identified is the same occupation carried out by the nominee as the holder of a Subclass 457 visa.  The Tribunal is accordingly satisfied that this occupation carries the same 4-digit code as the occupation carried out by the nominee whilst she held a Subclass 457 visa.

16. Given the above findings, the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

17. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

18. Departmental records confirm that the nominator is the standard business sponsor who last identified Mrs Kamaldeep Kaur in a nomination made under s.140GB of the Act. 

19. The Tribunal has received current information evidencing that the applicant is actively and lawfully operating a business in Australia, including an ASIC current and historical search, financial statements and company tax returns from FY 2015 to FY 2018, the most recent business activity statements, payroll information, and the current WorkCover Certificate of Currency. 

20. In written submissions, the Tribunal also received evidence about the nature of the business and its operations. The Brow & Beauty Parlour has rapidly expanded in recent years and now has over 50 locations across Australia, including Victoria, Tasmania, South Australia and New South Wales, with the nominee located at the Bayside location in the south east suburbs of Melbourne. The Brow & Beauty Parlour has been registered as a company since 24 December 2014.  It currently employs seven full-time Beauty Salon Managers (including the nominee), with the remainder working part-time.

21. The Tribunal has also had regard to Departmental records and is satisfied that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i) of the Regulations.

22. Given the above, the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

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 two of the three 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 two years in the three years immediately before the application.

24. In this case, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 visa on 20 August 2014 to work in the nominated occupation of Beauty Salon Manager. This nomination application was lodged on 27 April 2017.

25. The Tribunal has considered documentary evidence, including the nominee’s current employment contract and position description, and the nominee’s lodged tax returns for FY15, FY16, FY17 and FY18.  The Tribunal has also considered documentary evidence regarding the nominee’s position, and is satisfied that the position carried out by the nominee is that of a Beauty Salon Manager.  The Tribunal has also considered evidence of the nominee’s employment, including payroll information, and is satisfied that the nominee has been employed on a full-time basis in Australia in the relevant position for at least two of the three years before the application.

26. Given the above findings, the requirement in r.5.19(3)(c) is met.

    Future employment of the visa holder: r.5.19(3)(d)

27. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full time basis for at least two years on terms that do not expressly preclude the possibility of an extension.

28. Evidence before the Tribunal includes the most recent signed employment contract in respect of the nominee dated 24 April 2017, outlining the current terms and conditions of employment, and providing for a minimum of two years of employment from the date of grant of the Subclass 186 visa, with an option to extend after that period.  The applicant has also provided copies of the nominee’s tax returns since 2015 together with weekly payslips, which indicate that the nominee’s current base salary is $57,720.00 per annum plus superannuation at the current legislated rate.

29. The Tribunal has also had regard to the applicant’s financial capacity to employ the nominee for a period of at least two years, in accordance with r.5.19(3)(d)(i). The Tribunal has considered updated financial records, including the 2018 financial statements, the most recent BAS statements, and updated payroll information, and is satisfied that the applicant can support the employment of the nominee for at least two years.

30. Given the above findings, the requirement in r.5.19(3)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

31. Regulation 5.19(3)(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.

32. The applicant has provided documentary evidence that the business’ other beauty salon managers who are permanent residents are on equivalent terms and conditions of employment as the nominee, including copies of the contracts of employment of six other beauty salon managers who are permanent residents.

33. The applicant has also provided documentary evidence of detailed market research on the nominee’s salary, including Payscale.com and Job Outlook. On the basis of that research, the Tribunal is satisfied that the nominee’s salary is within the range expected of beauty salon managers in metropolitan Melbourne.  The applicant has also submitted that it continues to advertise for and seek additional full time beauty salon managers to support the rapidly expanding business.

34. Given the above, the Tribunal is satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. 

35. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

36. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the  applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

37. The applicant was most recently approved as a standard business sponsor on 14 May 2015 for a period of five years. The delegate refused the applicant’s nomination on the basis of lack of supporting evidence to substantiate compliance with the training commitments and obligations in r.5.19(3)(f). In submissions to the Tribunal, the applicant has sought to establish compliance with the training requirements under training Benchmark B in Schedule A of IMMI 13/030.

38. The applicant has provided extensive submissions to the Tribunal seeking to demonstrate compliance with the training benchmark obligations. The Tribunal has had regard to the following documentary evidence provided:

    a.Three year training contract with One Window Operation, commencing 2 October 2014, and concluding on 16 December 2016, for a total sum of $51,920 reflected in the 2017 financial statements, under Training Benchmark B;

    b.Further training with One Window Operation, in June 2017 for an amount of $6,700, under Training Benchmark B;

    c.The employment of a qualified National Training & Sales Manager from 9 October 2018 to cover staff training at an annual salary of $70,000, plus a travel allowance of $6,000 and an annual bonus of up to $6,000, subject to satisfactory performance.  As at 22 April 2019, the total spent on training through the Training Manager (salary plus expenses) was $34,544.95;

    d.Payments totalling $78,500 to Taste4Business Pty Ltd, for an e-learning platform and training program, comprised of payments of $13,300 on 15 April 2019 and $65,200 on 19 August 2019.

39. In submissions to the Department and the Tribunal, the applicant has accepted that it had not technically met the requirements of Training Benchmark B during each year of the standard business sponsorship, but requested consideration of the applicant’s intention to comply, and commitment to meeting the training requirements over the term of its standard business sponsorship. In support of its request for the exercise of the Tribunal’s discretion to disregard the failure to comply with the obligations, the applicant has requested consideration of the following:

    a.Aggregate amounts paid to One Window Operation of $58,620 for a structured three year training plan covering the first three years of the standard business sponsorship, accounted for in FY 2017 ($51,920.00 paid on 2 October 2016 & $6,700.00 paid on 30 June 2017);

    b.The failure to meet Training Benchmark B in the FY2018 was due to a lack of understanding of ongoing training requirements following the introduction of the Skills Australian Fund Levy, which the company has since taken steps to rectify;

    c.Employment of the National Training Manager in October 2018 as evidence of its ongoing commitment to training. The Training Manager’s salary and expenses for the period from commencement of employment in October 2018 to the employee leaving the business on 22 April 2019 was $34,544.95. The Tribunal notes this position is now vacant;

    d.Payment of $13,300 plus GST to Taste4Business Pty Ltd on 15 April 2019 for an on-line training program towards Training Benchmark B; and

    e.Additional training expense of $65,200 to Taste4Business Pty Ltd in August 2019, for an on-line training program towards Training Benchmark B; and

    f.The ongoing commitment of the business to meeting the training benchmark obligations and commitments for the remainder of the standard business sponsorship (to 14 May 2020) through investment in training programs towards Training Benchmark B.

40. The financial reports and BAS statements before the Tribunal, together with letters from the applicant’s accountant indicate that the nominator’s payroll for the first three years of the standard business sponsorship (14 May 2015 – 14 May 2018) was $9,800,410.24, equating to a requirement to contribute at least $98,004.10 under training Benchmark B on training Australian citizens and permanent residents for each year it was approved and employed a Subclass 457 visa holder. In the fourth year of the standard business sponsorship (14 May 2018 – 14 May 2019), the payroll was $6,510,691.29, equating to a requirement to spend at least $65,106.91 under Training Benchmark B. 

41. The Tribunal notes that based on the documents before it, the applicant has spent a total of $171,664.95 to cover the first four years of the standard business sponsorship, over the minimum of $163,111.01 required to meet Training Benchmark B, with commitments to further expenditure for the final year of the standard business sponsorship.  The Tribunal notes that these payments were not made in each year of the standard business sponsorship, and as such, the applicant did not comply with its training commitments and obligations under training Benchmark B.  Notwithstanding this, having regard to Schedule A of IMMI 13/030 and relevant policy, the Tribunal accepts the aggregate of these payments as meeting the applicant’s training commitments and obligations in the first four years of the most recent standard business sponsorship.

42. The Tribunal also notes submissions from the applicant that since the nomination application that is the subject of this review was refused, the applicant has had six other identical nomination applications for Beauty Salon Managers under Subclass 186 approved by the Department based on the evidence provided, with the most recent two nomination applications approved on 29 April 2019.

43. Accordingly, the requirement in r.5.19(3)(f) is met.

    No adverse information known to Immigration: r.5.19(3)(g)

44. Regulation 5.19(3)(g) 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. 

45. There is no evidence before the Tribunal to indicate that there is adverse information known to Immigration about the applicant or an associated person.

46. Accordingly, the requirement in r.5.19(3)(g) is met.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

47. Regulation 5.19(3)(h) requires the applicant to have 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.

48. There is no evidence before the Tribunal to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations where it operates a business. 

49. Accordingly, the requirement in r.5.19(3)(h) is met.

50. 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

51. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Phoebe Dunn
    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.