Unique Hair and Beauty Salon Pty Ltd (Migration)

[2020] AATA 4951

Unique Hair and Beauty Salon Pty Ltd (Migration) [2020] AATA 4951 (5 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Unique Hair and Beauty Salon Pty Ltd

CASE NUMBER:  1809938

HOME AFFAIRS REFERENCE(S):          BCC2017/1507859

MEMBER:Michelle East

DATE:5 October 2020

PLACE OF DECISION:  Perth

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

Statement made on 05 October 2020 at 12:07pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Hairdresser – financial capacity to maintain employment – nominee’s employment contract – PAYG assessment – company’s tax records and financial statements – decision under review set aside

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 Home Affairs on 27 March 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 26 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 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 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 based on the evidence provided that the applicant had the financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years.

5. The Tribunal was in receipt of substantially more material than was available to the delegate and was able to make a decision on the papers.

6. In the course of preparing this matter, the Tribunal became aware that the applicant had lodged a fresh nomination application which had been approved on 9 August 2019.  The applicant’s representative wrote to the Registry on 30 October 2019 advising them of this development and asking for priority processing, which was refused.  Subsequently to this, the associated visa applicant applied for and was granted a Subclass 186 visa on 24 February 2020.  On becoming aware of this development, our Registry contacted the applicant’s representative asking whether they wished to proceed with this application as it was of no material benefit and therefore a futile application.  The applicant’s representative responded that they were hopeful of a refund if this application is decided favourably.  They also thought it would be of assistance to another related application where the visa applicant had not been able to obtain her visa.  The Tribunal notes that the associated visa applicant for this particular application would be entitled to a refund in any case because she was granted a visa of the same subclass.  Unfortunately, the nominator is not entitled to a refund without a favourable decision by the Tribunal.

7. The Tribunal understands the applicant’s reasoning in this regard, however, given the time spent in what is essentially a futile exercise by the Tribunal, it is disappointing that the applicant chose to use the Tribunal’s limited resources to achieve a result that places them in no better position than they were before.  The associated nomination and visa application can be decided on their own merits without the need for this matter to be reviewed.

8. Despite this however, the applicant is entitled to seek review of the delegate’s decision which the Tribunal has proceeded to do.

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

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. On the basis of the information in the Department’s file, the Tribunal is satisfied that the nomination was made on the approved form, that the prescribed fee has been paid and that the relevant written certification relating to conduct that contravenes s.245AR(1) has been provided as part of the application form.

14. The Tribunal is also satisfied based on the information in the Department’s file, that the application for approval identifies Ms Navdeep Kaur MUNDI as the relevant 457 visa holder and identifies the occupation of Hairdresser in relation to the position that is listed in the ANZSCO and has the same 4-digit occupation unit group as the occupation carried out by the relevant holder of the subclass 457 visa.

15. Given the above, the requirements of r.5.19(3) are met.

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

16. 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.

17. Departmental records confirm that the nominator is the standard business sponsor who last identified Ms Mundi in a nomination made under section 140GB of the Act.

18. The Tribunal has received current evidence that the business is actively and lawfully operating a business in Australia, including ASIC information and financial documents.

19. 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).

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

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

21. 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 2 of the 3 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 2 years in the 3 years immediately before the application.

22. In this matter, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 visa on 10 November 2014 to work in the nominated position of Hairdresser with the nominator. This application was lodged on 26 April 2017.

23. The applicant provided to the Tribunal evidence (HR and payroll records, including PAYG summaries) as well as a statement by the Director, Mr Kumar dated 21 April 2017 that the applicant has been employed full time since November 2014 and has continued to be employed since that time.  The evidence before the Tribunal confirms that the nominee has worked in a full time capacity in the position of Hairdresser, for the applicant, for a period of two years whilst holding a Subclass 457 visa.

24. On the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the relevant position for at least 2 years in the 3 years before the nomination was made. The requirements of r.5.19(3)(c)(i) are therefore satisfied.

25. 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)

26. 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.

27. The Tribunal has received a copy of the nominee’s employment contract dated June 2015 together with further undertakings by the Director confirming her ongoing employment.  The nominee’s most recent PAYG assessment provided indicates a taxable income of $53,840.

28. The delegate was concerned that the applicant did not have the financial capacity to employ the nominee for least a period of 2 years.  The PAYG assessments provided indicate that the nominee has been employed on a continuous basis since 2014.  The Tribunal was also in receipt of substantially more material than was available to the delegate.  After reviewing the company’s tax records and financial statements for the previous few years, the Tribunal is satisfied that the company has the ability to maintain the nominee’s employment for at least a further 2 years.

29. Given the above, the Tribunal is satisfied 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. It follows that the requirement in r.5.19(3)(d) is met.

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

30. 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.

31. The evidence provided indicates that the nominee is receiving a taxable income of approximately $54,000. The Tribunal has had regard to the terms and conditions of employment set out in the employment contract and after considering all the evidence is satisfied that the terms and conditions applicable to the position are 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. Accordingly, the requirement in r.5.19(3)(e) is met.

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

32. 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.

33. The Tribunal finds that the period of the Applicant’s most recent sponsorship approval was from 19 November 2012 until 19 November 2015.

34. The Tribunal has considered the applicant’s claim and whether it has provided sufficient evidence to demonstrate it had spent an amount on training equivalent to at least 1% of payroll expenditure in the period of the applicant’s most recent SBS approval.

35. The applicant has a related nomination application for the same business for a different visa applicant (Tribunal file reference: 1817542).  As part of that application the applicant provided further documents to the Tribunal that detailed their training expenditure during the period of their most recent SBS approval as well as money spent on training up to and including 2019.

36. The Tribunal has carefully reviewed the information provided and is satisfied that for the years 2014 and 2015 the applicant fulfilled their training requirements.  For the year 2012 – 2013, the previous director miscalculated the amount payable which was rectified by the current director in 2017.  The applicant has conceded that they made the payment outside the period of the SBS approval.

37. The Tribunal considered whether it is reasonable to disregard r.5.19(3)(f)(i) as allowed by r.5.19(3)(f)(ii).

38. The Tribunal has had regard to the Department’s policy guidelines and the submissions provided by the representative.  The Tribunal notes that the SBS expired in 2015 and the additional payment was not made until 2017.  Balanced against this however, the Tribunal notes that the applicant has demonstrated that it has made an aggregate expenditure on training over the term of its most recently approved sponsorship commensurate with the total training commitment for that period.  This was due to higher payments being made in the subsequent two years.

39. The Tribunal therefore considers it reasonable to disregard the requirements in r.5.19(3)(f)(i).

40. The Tribunal also notes that the related nominee to this application was granted her Subclass 457 on 10 November 2014.  The nominee associated with a related nomination application was granted her Subclass 457 on 19 June 2015.  It is unclear on the documents provided as to whether the applicant had other Subclass 457 visa holders in their employ during the period of their SBS approval.  If not, it would mean that the obligation to comply with training requirements only arose after the employment of the nominee associated with this application.  According to an explanatory statement relevant to legislative instrument IMMI 13/030 and the relevant policy at that time, an SBS holder is only required to meet the training benchmark for the SBS years in which they employed an active Subclass 457 visa holder.  As stated, the Tribunal is not in receipt of sufficient material to determine if there were in fact other Subclass 457 visa holders employed by the applicant during the relevant periods.

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

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

42. 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. 

43. The Tribunal is not aware of any adverse information known to Immigration about the nominator or person associated with the nominator.

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

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

45. 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.

46. There is no evidence before the Tribunal to indicate that the applicant has not complied with workplace relation laws.

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

48. 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

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

    Michelle East
    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.