The Jamit Trust & the TL Family Trust & the Wayne White Family Trust (Migration)

The Jamit Trust & the TL Family Trust & the Wayne White Family Trust (Migration) [2022] AATA 2182 (27 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Jamit Trust & the TL Family Trust & the Wayne White Family Trust
REPRESENTATIVE:  Mrs Simone Louise Kearney (MARN: 1173899)
CASE NUMBER:  1910926
HOME AFFAIRS REFERENCE(S):          BCC2018/798095
MEMBER:Amanda Mendes Da Costa
DATE:27 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 27 June 2022 at 10.57am

CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – occupation of Hairdresser – financial capacity to employ the nominee for at least two years – updated financial information – actively and lawfully operating a business in Australia – terms and conditions of employment no less favourable – tasks of the position correspond to nominated occupation – genuine need for the employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245, 360
Migration Regulations 1994, rr 1.13, 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 24 April 2019 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 19 February 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(4)(d)(i) of the Regulations because the applicant had not demonstrated that it had the financial capacity to provide full time employment and superannuation contribution to the nominee for a minimum period of two years as required by the Regulations.
On the basis of the material in both the Department’s and Tribunal’s files, and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour. It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.
The applicant was represented in relation to the review.
The documents provided to the Tribunal for the purpose of the review included the following:
·ASIC current and historical information.
·Business name renewal and ABN details.
·Employment contract for the nominee dated 22 March 2022.
·Submissions.
·Letter Confirming regarding the applicant’s compliance with workplace laws and its sponsorship obligations.
·Reference for the nominee, Paul May, dated 1 April 2022.
·Organisational chart.
·Financial statements for the years ended 30 June 2020 and 2021.
·Company taxation returns for the years ended 30 June 2020 and 2021.
·Apprenticeship Training Contract dated 13 April 2017.
·Business activity statements (BAS) for the periods March to June 2020 and 2021; June to September 2020 and 2021.September to December 2020 and 2021; and December to March 2021.
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: reg 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 an identified person as a paid employee to work in the position under their direct control.
From the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was not required to be accompanied by a prescribed fee as it relates to a regional employer. It is further satisfied as to the completion of a written certification relating to conduct that contravenes s.245AR(1) which was signed by the applicant.
The Tribunal further notes that the nomination application form identifies a nominee (Anuradha) for the nominated occupation of Hairdresser (ANZSCO 391111), a paid position. The Tribunal is satisfied from the position description and information in the application form that the nominated position is under the direct control of the applicant.
Accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 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 is satisfied from the documents provided to it by the applicant including the applicant’s recent financial statements and its current ASIC and ABN registration, that it is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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 evidence before the Tribunal indicates that the applicant operates a Hairdressing business and there is no suggestion that its business activities include any relating labour hire to an unrelated business.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 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 is satisfied from the BAS, financial statements, company taxation returns and the employment contract for the nominee (dated 22 March 2022) that were provided to the Tribunal, that the applicant has the financial capacity to employee the nominee for at least two years full time. Further to this, the Tribunal is satisfied that the nominee’s employment will not include an express exclusion of the possibility of extending the period of employment.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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.
The up-dated contract of employment provided to the Tribunal (dated 16 June 2022) states that the nominee’s salary will be $57,463.46 per annum (plus superannuation). The evidence before the Tribunal indicates that there is no equivalent position in the applicant’s business operations and that there was no equivalent Australian employee.
Accordingly, the Tribunal has considered the evidence put forward to determine whether the proposed salary and terms and conditions of employment would 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. Based on the evidence before it the Tribunal is satisfied that the terms and conditions relating to hours or work and leave and termination entitlements in the nominee’s contract of employment are consistent with those contained in the National Employment Standards.
The Tribunal notes that Payscale.com shows that the hourly range for a hairdresser is between $20.37 to $29.23 with a median hourly rate of $23.74. This equates to a range of between $42,000 and $61,000 per annum with a median annual salary of $51,500.
Based on the evidence before it, the Tribunal is satisfied that the terms and conditions relating to hours of work and leave and termination entitlements in the nominee’s contract of employment are consistent with those contained in the National Employment Standards.
Accordingly the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
There is no evidence before the Tribunal which indicates that there is any adverse information known to Immigration about the applicant or any person associated with the applicant.
Accordingly the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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.
There is no evidence before the Tribunal of breaches of the workplace relations laws of the Commonwealth or in any State by the applicant.
Accordingly the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 18/005, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant operates a hairdressing salon (trading as iBarber) which is located in the Westfield Shopping Centre (Southland) in Cheltenham. The business offers specialises in male clients and offers traditional services such face shaves and hot towel treatments combined with new cutting styles.
The nominated position duties, as listed by the applicant in its position description provided to the Department, are as follows:
·Talking to clients about their requirements and analysing client’s hair.
·Shampooing, conditioning, treating, massaging and rinsing hair.
·Providing services such as bleaching, conditioning, permanent waving, straightening and tinting hair.
·Cutting hair using clippers, scissors or razors.
·Drying and styling hair using brushes, combs, straightening irons and other equipment.
·Shaving and trimming beards and moustaches.
·Operating a cash register and computer.
·Performing reception duties such as answering telephone calls and making appointments.
·Cleaning the salon, work areas and equipment.
The ANZSCO dictionary describes a hairdresser as one who cuts, styles, colours, straightens and permanently waves and treats hair and scalp conditions. The tasks associated with this position include:
·Providing advice on hair care, beauty products and hairstyles;
·Shampooing hair and conditioning scalps;
·Colouring, straightening and permanently waving hair with chemical solutions;
·Cutting hair with scissors, clippers and razors;
·Styling hair into dreadlocks and braids and adding hair extensions;
·Shaving and trimming beards and moustaches;
·Cleaning work areas and sanitising instruments;
·Arranging appointments and collecting payments;
·May clean, colour, cut and style wigs and hairpieces.
Having considered the above descriptions, the Tribunal is satisfied that the tasks associated with the nominated position are commensurate with those set out in the ANZSCO dictionary for the position of Hairdresser.
Having considered the evidence before it (Including the organisational chart, employment contract, financial statements and written submission) the Tribunal is satisfied that the applicant has a genuine need for the nominated position of Hairdresser in the business. The Tribunal is also satisfied that the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant written instrument.
With regard to whether the position can be filled by an Australian citizen or permanent resident who is living in the same local area, the Tribunal has had regard to the information submitted on behalf of the applicant to the Department and Tribunal.
The Tribunal accepts the evidence and submissions of the applicant which indicate that the applicant has experienced difficulties in recruiting suitably qualified and experienced staff for the nominated position and that these difficulties have been exacerbated by the employment situation in Victoria following the Covid-19 pandemic.
The information before the Tribunal further indicates that the applicant advertised the nominated position via a range of advertising platforms and the evidence along with the submissions provided satisfy the Tribunal that the position was not able to be filled locally.
Having considered all of the evidence before it, the Tribunal is satisfied that the position cannot be filled by an Australian citizen, or permanent resident, who is living in the same local area.
Based on the evidence before it, the Tribunal is further satisfied that the applicant has met its relevant training requirements.
Accordingly, the Tribunal is satisfied that r.5.19(4)(h)(ii)(C) is met, and that r.5.19(4)(h)(ii) is met as a whole.
Accordingly the requirements of reg 5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
Amanda Mendes Da Costa
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).

[2022] AATA 2182

27 June 2022

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