Yuckhaev (Migration)

Yuckhaev (Migration) [2024] AATA 149 (23 January 2024)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yulia Yuckhaev
Mr Alan Yuckhaev
Miss Emily Yuckhaev
REPRESENTATIVE:  Mrs Alla Giller (MARN: 0210079)
CASE NUMBER:  2109179
HOME AFFAIRS REFERENCE(S):          BCC2020/663058
MEMBER:Warren Stooke
DATE OF DECISION:  23 January 2024
DATE CORRIGENDUM
SIGNED:6 February 2024
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

On the cover page of the Decision Record at “Date: 23 January 2023” to be replaced with 23 January 2024.

Warren Stooke
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yulia Yuckhaev
Mr Alan Yuckhaev
Miss Emily Yuckhaev
REPRESENTATIVE:  Mrs Alla Giller (MARN: 0210079)
CASE NUMBER:  2109179
HOME AFFAIRS REFERENCE(S):          BCC2020/663058
MEMBER:Warren Stooke AM
DATE:23 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named and secondary applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
·cl 186.223 of Schedule 2 to the Regulations;
·cl 186.233 of Schedule 2 to the Regulations; and
·cl 186.311 of Schedule 2 to the Regulations.
Statement made on 23 January 2024 at 11:31am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – occupation of Hairdresser – approved standard business sponsor – nomination approved upon review – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.233, 186.311; r 1.13
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 1 July 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 3 March 2020. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Hairdresser – ANZSCO Code: 391111.
The delegate refused to grant the visas on the basis that the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the applicant did not have an approved standard business sponsor for the nominated occupation of Hairdresser – ANZSCO Code: 391111.
The applicants appeared before the Tribunal on 14 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sahnovski, the Business Manager for Hair Touch Professional Salon Pty Ltd and Mr Bezhenar, the accountant for the business.
The applicants were represented in relation to the review.
The applicant stated that she had received a copy of the delegate’s decision and the applicant had read the decision.
The applicant stated that she understood the refusal was based upon the financials of the business.
The applicant stated that a copy of the delegate’s decision had been submitted to the Tribunal with the application for review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant has an approved standard business sponsor for the nominated occupation of Hairdresser – ANZSCO Code: 391111.
The applicant provided evidence that she was granted a Bridging Visa A on 5 March 2020 with no conditions.
The applicant stated that she completed a Certificate III in Hairdressing on 6 May 2015; Certificate IV in Hairdressing on 25 November 2015; and a Diploma of Salon Management on 6 July 2016, at Melbourne College of Hair and Beauty.
The applicant provided evidence of having undertaken a PTE English language test on 9 December 2019 with an overall score of 54.
The applicant provided evidence of marriage on 31 January 2006 in Prague.
The applicant provided evidence of an AFP name check only, dated 2 March 2020 that identified ‘no disclosable court outcomes’.
The applicant stated that she joined the business in 2014 and initially was a helper and learning (whilst a student).
The applicant stated that she has specialist skills in working with wigs, which has a cultural importance to the Jewish orthodox community and sometimes uses mannequins for regular clients.
The applicant stated that she took maternity leave and is full-time for 38 hours per week since November.
The applicant stated that she has a salary of $55,012 p.a. and from next year (2024) her salary will increase to $74,000.
The applicant stated that she has a husband and two daughters in Australia and that the oldest is in Israel.
The applicant provided a birth certificate for her daughter, Tiana Mel Yuckhaev, who was born of 5 November 2022.
Evidence of Ms Sahnovski (the nominating sponsor)
The nominating sponsor provided evidence that the business was registered as Hair Touch Professional Salon (The Trustee for Sahnovski Family Trust) with ASIC on 15 October 2010 and assigned ACN 146 912 512. On 20 October 2010 the business was assigned ABN 91 793 927 528.
The evidence for the nominating sponsor was provided at hearing by Ms Sahnovski, Business Manager, and partner of the owner.
The nominating sponsor stated that the business specialises in colouring, cutting, hair straightening and styling services and provides facials and paramedic skin treatments, hair removal, antiwrinkle injections and cosmetic tattooing, in Ripponlea, Melbourne.
The nominating sponsor stated that the business currently has one full-time employee (the applicant) and all others are subcontractors (6).
The nominating sponsor stated that the sponsorship was approved on 24 March 2016 to 24 March 2021.
The nominating sponsor provided evidence that the Hair and Beauty Award 2010 applied to the employees of the business.
The nominating sponsor submitted a Certificate of Registration for the Business Name dated 15 October 2010.
The nominating sponsor provided evidence of the salary paid to the applicant for the period 24 May 2018 to 8 March 2019 into the CBA bank account of the applicant, which included the amount of $842.50 on a weekly basis.
The nominating sponsor provided a copy of the contract of employment to the Department dated 1 October 2019 that will commence within one month of the ENS visa grant with a salary of $55,012 p.a. for the nominated occupation of hairdresser that was signed on 30 October 2019.
The nominating sponsor stated that the applicant was provided with a Fair Work Information Statement at the time of employment.
The nominating sponsor stated that superannuation payments are contributed to the REST Superannuation fund.
The nominating sponsor submitted to the Department copies of the applicant’s ATO tax returns for the financial years ending 30 June 2017, 2018; 2019 and 2020, with gross income amounts of $27,629; $49,849; $54,274 and $50,137, respectively.
The nominating sponsor provided PayScale information for the nominated occupation of Hairdresser that indicated that the average salary was $52,977 and that the current award rate is $1,043.80 per week for 38 hours.
The nominating sponsor provided a schedule of tasks and responsibilities for the nominated position of Hairdresser – ANZSCO Code: 391111, that included the following:
a.Talk to clients about their requirements;
b.Cut hair using clippers, scissors and razors;
c.Shampoo, condition and rinse hair;
d.Provide services, such as bleaching, conditioning, permanent waving, straightening and tinting;
e.Dry and style hair using brushes, combs, straightening irons and other equipment;
f.Shave and trim beards and moustaches;
g.Attend hairdressing seminars and training in order to keep up to date with new products and techniques;
h.Operate a cash register and computer;
i.Perform reception duties, such as answering telephone calls and making appointments;
j.Sell retail products;
k.Maintain client records;
l.Clean the salon, work areas and equipment.
The nominating sponsor stated that the salon specialises in providing services to members of the Jewish community, with wig styling, colouring and trimming.
The nominating sponsor stated that the position is for a permanent employee on a full-time basis.
The nominating sponsor stated that the position was advertised on seek in 2014 and that the applicant has unique skills, which came through after advertising.
The nominating sponsor stated that the applicant has completed a PTE English language test with an overall test score of 54.
The nominating sponsor stated that the applicant has been with the business for nine years and is very loyal and that the business survives on having a full-time employee, not on a casual basis.
Nomination of a position
Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.
In addition, this criterion also requires that:
·the nomination has been approved and has not been subsequently withdrawn
·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information
·the position is still available to the applicant, and
·the visa application was made no more than six months after the nomination of the position was approved.
Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.
In addition, this criterion also requires that:
·the nomination has been approved and has not been subsequently withdrawn
·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information
·the position is still available to the applicant, and
·the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal, following the hearing with Touch Hair Professional Salon Pty Ltd on 14 December 2023 and the subsequent decision of the Tribunal in Case Matter 2101550 of 23 January 2024, is satisfied that the applicant has an approved nominated position.
The Tribunal is satisfied that the skills applied by the applicant with Touch Hair Professional Salon Pty Ltd, demonstrate on the evidence that a genuine position exists for the nominated occupation of Hairdresser – ANZSCO Code: 391111, as supported by the evidence submitted and canvassed, at hearing.
The applicant is paid a salary that exceeds the minimum rate of pay provided under the award and a base salary of $55,012 per annum is paid to the applicant, exclusive of superannuation. A contract of employment dated 1 October 2019 and signed on 30 October 2019 was provided in evidence.
The applicant provided evidence of her professional hairdressing qualifications with a completed Certificate III in Hairdressing on 6 May 2015; Certificate IV in Hairdressing on 25 November 2015; and a Diploma of Salon Management on 6 July 2016, at Melbourne College of Hair and Beauty.
On the basis of the foregoing, the Tribunal is satisfied that the applicant has the requisite skill, contract term for more than 2 years and remuneration and conditions of employment to meet the requirements of the nominated position.
Therefore, cl.186.233 is met.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
The Tribunal is also satisfied that the secondary applicants, on the basis that the primary applicant satisfies the requirements of cl.186.233, that the criteria pertaining to cl.186.311 has been met. In this regard, the Tribunal notes that Ms Tiana Mel Yuckhaev was not subject to the original application having been born on 5 November 2022.
DECISION
The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named and secondary applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
·cl.186.233 of Schedule 2 to the Regulations;
·cl.186.223 of Schedule 2 to the Regulations; and
·cl.186.311 of Schedule 2 to the Regulations
Warren Stooke AM
Member

ATTACHMENT A
186.223(1)     The position to which the application relates is the position:
(a)nominated in an application for approval that:
(i)identifies the applicant in relation to the position; and
(ii)is made in relation to a visa in a Temporary Residence Transition stream; and
(c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)     The Minister has approved the nomination.
(3)     The nomination has not subsequently been withdrawn.
(3A)    Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(4)     The position is still available to the applicant.
(5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.

[2024] AATA 149

23 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Appeal