The Trustee for the Michele Casalbore Family Trust (Migration)

[2020] AATA 1614

The Trustee for the Michele Casalbore Family Trust (Migration) [2020] AATA 1614 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for the Michele Casalbore Family Trust

CASE NUMBER:  1811675

DIBP REFERENCE(S):  BCC2017/1746764

MEMBER:Peter Emmerton

DATE:12 May 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 12 May 2020 at 11:45am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Hairdresser – actively and lawfully operating – hairdressing business – ceased trading – financial capacity to maintain employment – 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 5 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 16 May 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)(d)(i) of the Regulations because they were not satisfied that the nominator would be able to pay the nominated full-time salary for the nominated position for at least 2 years and therefore they will not be able to provide the employee with full-time employment for at least 2 years.

5. The applicant was invited to appear before the Tribunal, via telephone, on 12 May 2020, represented by Ms Joanne Casalbore on behalf of The Trustee for the Michele Casalbore Family Trust, in a combined hearing with MRT file ref.1815959, to give evidence and present arguments. Ms Joanne Casalbore informed the Tribunal that she did not represent the nominating entity which was no longer trading. The Tribunal had prior to the hearing confirmed by referencing the ASIC web site that the nominator was no longer trading as ‘C Salon’. The representative of the nominator and the visa applicant acknowledged that they represented both parties and that they had not been able to contact the nominator and receive instructions following their advice regarding the hearing.

6. The Tribunal is satisfied that the nominator had received notification of the hearing in the required manner via the communication channels stipulated by them. The Tribunal also received, oral evidence via telephone, from Mr Pjerin Preka, the visa applicant. The Tribunal found all those presenting evidence to be credible and they appeared to answer questions in an open and honest manner without obfuscation.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 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.

10. 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 particular circumstances.

11. 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.

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

12. 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.

13. On 20 March 2020 the nominator, via their representative sent a written statement to the Tribunal stating the following.

    ‘30 June 2019 the nominator, The Trustee for Michelle Casalbore Family Trust, ceased trading as a hairdressing business under the trading Name C Salon, and does no longer have a need, intention nor capacity to employ Mr Pjerin Preka in the position of a hairdresser.

    Therefore, the Tribunal must affirm the delegate’s decision not to approve the nominated position.

    The decision to refuse the visa application must be consequently affirmed.’

14. This information as stated in paragraph 13 was confirmed at the hearing, by the nominator’s representative. It is clear to the Tribunal from the statements made to the Tribunal in writing prior to the hearing and subsequently confirmed verbally at the hearing, plus the enquiries made by the Tribunal on the ASIC website that the nominating entity is no longer trading as C Salon.

15. Given the above, the requirement in r.5.19(3)(b) is not met.

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

16. 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 2 years on terms that do not expressly preclude the possibility of an extension.

17. The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because they were not satisfied that the nominator would be able to pay the nominated full-time salary for the nominated position for at least 2 years and therefore they will not be able to provide the employee with full-time employment for at least 2 years.

18. The Tribunal has perused the financial documentation provided to the delegate and acknowledges and accepts as fact, the statement made by the nominator that they were unable to provide the current financial documentation requested by the Tribunal in the 359(2) invitation dated 24 February 2020 due to the changed circumstances of the business as stated in paragraph 20.

19. ‘Please be advised that we are unable to provide the requested information because the nominator is no longer operating a business.”

20. The Tribunal notes, as did the delegate in their decision, the increasingly substantial accumulation of financial losses incurred by the business. Losses totalling $378,000 were accumulated in the FY 2015 and FY 2016 period associated with a 45% reduction in turnover. The 3 BAS statements for the FY 2017 showed a further substantial decline in revenues. As previously stated, no additional current financial details were available. The Tribunal has formed the view that that the nominator would not be able to pay the nominated full-time salary for the nominated position for at least 2 years and therefore they will not be able to provide the employee with full-time employment for at least 2 years.

21. Given the above findings, the requirement in r.5.19(3)(d) is not met.

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

    DECISION

23. The Tribunal affirms the decision under review to refuse 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.

    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.