1410693 (Migration)

[2015] AATA 3660

1410693 (Migration) [2015] AATA 3660 (19 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  M.S. Wholesalers Pty Ltd

CASE NUMBER:  1410693

DIBP REFERENCE(S):  BCC2014/1046858 BCC2014/1683010

MEMBER:Denise Connolly

DATE:19 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 19 November 2015 at 11:19am

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 4 June 2014 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 of a Store Manager (occupation Retail Manager (General) (ANZSCO 142111) on 23 April 2014. 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 Direct Entry Nomination stream. The nominee for the position was Mr Shashin Sharadkumar Patel, who has made an application for an Employer Nomination visa for this position.

4. The delegate refused the application on the basis that the nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied the tasks and duties of the position aligned with an occupation at the ANZSCO skill level 1, 2 or 3. Having considered the tasks and duties of the position she formed the view the position was that of a Retail Supervisor, not a Retail Manager. On this basis Mr Patel’s visa application was also refused.

5. On behalf of the applicant, Mr Madhur Sehtiya, Director, appeared before the Tribunal on 29 September 2015 to give evidence and present arguments. A combined hearing was held with Mr Patel in relation to his application for review of the visa refusal.

6. The applicant was represented in relation to the review by its registered migration agent who also attended the hearing.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 r.5.19(4), which is attached to this decision. For the nomination to be approved, all the requirements must be met.

9. The nominating business trades as NightOwl Convenience Store, a franchised convenience store located in Earlville, QLD.  Mr Madhur Sehtiya is the Director. The applicant has nominated Mr Shashin Sharadkumar Patel to be employed in the position.

10. The applicant provided to the Department various documents including the franchise agreement between Think Convenience Pty Ltd (the franchisor), MS Wholesalers Pty Ltd and Madhur Sehtiya.  The documents indicated the applicant entered a franchise agreement with Think Convenience Pty Ltd on 11 October 2012. The applicant provided a position description for the position Store Manager. It states the position leads the store team by managing all aspects of the store’s operations and requires the store manager to meet KPIs in relation to sales growth, gross margins, costs and inventory management, store presentation, customer service, training, OH&S, behavioural competencies, technical knowledge and skills, and personal attributes.

11. The applicant has provided to the Tribunal a copy of the delegate’s decision record. The delegate noted that the job description provided for the store manager position indicates that the position reports to the franchisee or retail development manager.  She noted that the occupation Retail Manager (ANZSCO skill level 2) refers to a position that is expected to undertake an overall management role with responsibilities in strategic direction, staff recruitment, product selection and pricing. In assessing the job description for the position the delegate found that, as it reports to the franchisee or the retail development manager, it is not a position at the retail manager level as defined in the ANZSCO framework. She considered that a significant factor distinguishing a supervisor and a manager is the identification of the person who is responsible for the overall organisation and control of the business, and that while supervisors and managers might have overlapping tasks, the supervisor acts under the direction of the manager. In this case she found the franchisor has stated that the overall management and control rests with the franchisee. Therefore she concluded the nominated position is at the supervisory level in the business, not a management level. She also notes an advertisement provided in support of the application is for a ‘team member’ not a ‘retail manager’.

12. On 28 September 2015, the day before the hearing, the applicant provided to the Tribunal written submissions along with various documents, including the franchise agreement, evidence of the applicant’s purchase of the second NightOwl franchise at Shields Street, Cairns in August 2014, and financial documents. The employment letter addressed to the nominee, offering a salary of $44,800, is provided. There is also other evidence regarding terms and conditions, and the applicant’s compliance with business and employment laws. The representative confirms the nomination relates to the Earlville store although she states the retail manager may be moved between the Earlville and Shields Street stores. She provides evidence from the franchisor in relation to various positions; team member, assistant store manager and store manager. She confirms that the role of the store manager is often filled by the franchisee but not always where the franchisee holds more than one site. She states that because the stores’ operating hours are extended it was becoming a great burden for the franchisee to actively manage his stores alone and he decided to engage a store manager. A nomination position was approved (in September 2013, before the purchase of the second store) for Mr Faisal Nasim but he recently stepped down due to family commitments. This allowed the franchisee to scale back his involvement in the day to day running of the store, allowing him to take on a more general overseeing role and to purchase the second store. The franchisee now employs 11 staff and he now needs to employ a second store manager. She states that due to the expansion, the franchisee is able to dedicate less time to the day to day running of the Earlville store, and the employment of a store manager will allow him to continue his general overseeing role and take on a more hands on role in the Shields St store.

13. The representative also submits that, due to Mr Sehtiya’s physical absence from the Earlville store, the business requires a senior staff member who can take on responsibility and work unsupervised. This means in Mr Sehtiya’s absence the position will need to make decisions on a day to day basis about running the store so that the store meets the standards required by the franchisor. It is submitted that, while various activities are largely dictated by the franchise obligations, the store manager can be involved in related decisions. She acknowledges that the role entails aspects of a retail supervisor but asserts that the majority of the position’s tasks are consistent with the role of retail manager. She then asserts the franchisee’s involvement in the day to day running of the business is limited to his activities as a franchisee representative for Far North Queensland. She claims this requires frequent travel during which time the managerial tasks will be performed by the nominee.

14. The representative admits that some of the duties described in ANZSCO are not performed by the position, for example, the franchisor sets maximum prices and the franchisee is responsible for setting the overall budget. She admits the position will report to the franchisee but ‘within the parameters of the franchisee’s general overseeing role’. Decisions regarding recruitment will be made jointly and, while the franchisee will have the final say on recruitment, the position will provide advice.  The external franchisor position, the Retail Development Manager (now known as the Retail Training Manager) conducts site visits to assess compliance with the franchisor’s standards and may guide the manager but does not actively make managerial decisions about each franchise.

15. The representative has provided evidence in relation to the Regional Certifying Body’s advice about the genuine need for the position.

16. The position description provided indicates the store manager position is required to report to the franchisee or the retail development manager. The position description requires the store manager to meet KPIs in relation to sales growth, gross margins, costs and inventory management, store presentation, customer service, training, OH&S, behavioural competencies, technical knowledge and skills, and personal attributes.

17. The organisational chart provided indicates that Mr Madhur Sehtiya is the Director of the business, that the store manager position at the Earlville store is vacant and that there are 4 team members, including Mr Faisal Nasim.  The organisational chart does not indicate that Mr Madhur Sehtiya works as a team member at Earlville, or that Mr Nasim is the store manager. It indicates that the nominee is the store manager at the Shields Street store.

18. At the hearing Mr Sehtiya said that his business now has two NightOwl franchises, one in Earlville and the other in Shields Street, Cairns, purchased in October 2014.  He said until recently Mr Fasil Nasim, an Australian citizen, had been managing the Earlville store. He said the Earlville store currently has no manager and Mr Patel, the nominee, is managing the Cairns store. He confirmed that the nomination relates to the position at the Earlville store.

19. The Tribunal noted that the franchise agreement with NightOwl identifies the franchisee, Mr Sehtiya as the person responsible for meeting the KPIs described in the position description. It asked if NightOwl is aware that the applicant intends to nominate someone else to manage the Earlville store. He said that NightOwl knows about Mr Patel. The Tribunal asked if the applicant had any written evidence confirming that NightOwl knows that the applicant intends for Mr Patel to manage the store, in line with the franchise agreement. He said that it is not officially in writing and that he continues to be the nominated manager.

20. The Tribunal asked Mr Sehtiya if he, and anyone else, underwent the training referred to in the franchise agreement. He confirmed that he underwent 3-4 weeks instore training by a Retail Training Manager arranged by NightOwl. He confirmed that no-one else in the business has undergone this training.

21. The Tribunal asked about the store’s operations. Mr Sehtiya said the Earlville store is open 18 hours a day, 7 days a week (total 126 hours). He said the business employs one manager, and one or two team members per shift. There are a total of 5 staff employed at the Earlville store, one full-time and the other working between 10 to 20 hours a week. The Tribunal noted that this suggested that most of the time there was only one person working in the store. He indicated there is a full-time worker, David Baty, who works about 45 hours per week.

22. The Tribunal asked how much contact there is between the applicant and the franchisor. He said there is contact about once a month when the Retail Training Manager visits the store after which he uploads a report to the franchisor. He said that he deals with the franchisor about various issues such as recently there was a problem regarding a store renovation.

23. Mr Sehtiya provided evidence to the Tribunal that he has recently become the franchisee representative for Far North Queensland and this requires him to travel to various other store sites. He said he has undertaken this role in a voluntary capacity but the franchisor pays for the airfares. The Tribunal asked why he needs to travel to those stores and if he could perform the role by communicating electronically. He said he goes to talk with the other franchisees about issues and problems.  It asked about the demands of the role. He said that in August he visited the Port Douglas store.  He also communicates by phone. He thinks he has contact with other franchisees about 15 or 20 times a year. He goes to a meeting in Brisbane 4 times a year.

24. The Tribunal noted the franchise agreement indicates that many of the decisions about the business’ operations, such as product mix, suppliers and advertising, are determined by the franchisor. It also noted that the franchisee must adhere to the Manual, participate in all franchise promotions, order stock in the quantities directed, that the advertising is undertaken by the franchisor, and that the franchisee must perform according to the franchisor’s minimum performance criteria. The Tribunal indicated to the applicant that the franchise agreement may suggest that many of the decisions typically taken by a retail manager might have already been made by the franchisor. The applicant said that the manager still has to deal with ordering, pricing and promotions. He said that items have to be picked from the large list of items prepared by the franchisor. The Tribunal asked why he, as the Director, does not undertake those tasks. He indicated Earlville has a different demographic so the manager of that store picks the appropriate items. He indicated that the manager also choose which items to promote from a promotional booklet prepared by the franchisor. He indicated he pays a fee for advertising of 1% of sales.

25. The Tribunal noted that the expression of interest provided to the Department as evidence of the advertising of the position was for a team member, not a store manager. The applicant said that the advertisement came from the franchisor’s website. He said if he needs to fill a position he tells NightOwl’s head office and they advertise the position. He might also put it on Gumtree. He said he last advertised a team member position for the Cairns store in August. He cannot remember when he last advertised a position for the Earlville store.

26. The Tribunal noted that the position description provided indicates that the store manager position is required to report to the franchisee or the retail development manager and that the position description requires the store manager to meet KPIs in relation to sales growth, gross margins, costs and inventory management, store presentation, customer service, training, OH&S, behavioural competencies, technical knowledge and skills, and personal attributes. It asked about the current reporting arrangements for Earlville. He said that Mr Patel reports to Craig Hamilton, the retail development manager for the franchisor. He said before that Mr Nasim reported to him. He said Mr Nasim stopped managing the Earlville store because he had a baby and he wants to move to a bigger city. The Tribunal asked Mr Sehtiya what he does in the business and why he is not reporting to Mr Hamilton. He said that because of his workload he does not have time. The Tribunal asked what he is doing in the business. He claimed that he is working as a team member at Earlville, on the till, serving customers. The Tribunal questioned why he, as the Director, would merely work on the till, rather than undertake the store manager duties. He said the manager works during the daytime shift and he is there in the evenings. He said the manager has to be there in the morning to meet the supply representatives and deal with the banking. He claims he does not work in the daytime and that he works only as a team member. He claims he does not supervise the other staff because he is too busy.

27. The Tribunal asked Mr Sehtiya to describe the position’s tasks and duties. Mr Sehtiya said the position will do banking and prepare for security guard to collect the takings. It will check sales, stock levels, make orders and talk to suppliers. It will be involved in promotions and hire staff.

28. The Tribunal noted that the delegate considered the position was better described as a retail supervisor, which is not an ANZSCO level 1, 2 or 3 occupation. It noted that there are differences between the tasks under the occupations Retail Manager and Retail Supervisor. Mr Sehtiya indicated that the position will check compliance with OH&S. It will also advertise, determine what to stock from the franchisor’s list and choose suppliers. The Tribunal raised the question of whether in fact Mr Sehtiya, as Director and owner of the franchise business working at Earlville, undertakes these duties. Mr Sehtiya said that in his experience, if he undertakes the manager’s duties and leaves the sales to the team members, the sales go down. He claims he delegates the management to another person so that he can focus on sales. He works at night because there have been a number of break-ins and this is too much responsibility for team members.

29. The representative made the following submissions. Earlville has a significant criminal element and there is a problem with the drug ice. The police will not do anything about the problem. Businesses have been attacked regularly and Mr Sehtiya needs a manager to manage so that he can focus on security. He is trying to raise a family and he is exhausted.

30. After the hearing the representative provided written submissions in relation to reports regarding crime in the area.

    Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)

31. The nomination of a position is required to meet either regulation 5.19(4)(h)(i) or (h)(ii). Where the position and nominator’s business is located in regional Australia, the requirements appear under r.5.19(4)(h)(ii). In this case, the position and nominator’s business are located in Earlville, Qld, postcode 4870, which is “regional Australia” as defined. The requirements of r.5.19(4)(h)(ii)(A) are therefore met. The remaining requirements under r.5.19(4)(h)(ii) are each addressed below and are as follows:

    ·there is a genuine need for the paid position under the nominator’s direct control which a local Australian citizen or permanent resident cannot fill;

    ·the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3; and

    ·that a regional certifying body has advised the Minister about certain matters relating to the position.

    Genuine need for paid position

32. The Tribunal accepts that the regional certifying body has advised the Minister about certain matters relating to the position and that it formed the view that it was satisfied there is a genuine need for the position. The Tribunal takes this evidence into account. However the Tribunal has a number of concerns about the reliability of Mr Sehtiya’s evidence in relation to the need for the position. In written evidence to the Tribunal the day before the hearing it is asserted that the position is needed to allow Mr Sehtiya to take on a more general overseeing role and to be more hands on at the Shields Street store. It is submitted that a senior position is required to accommodate Mr Sehtiya’s physical absence from the Earlville store. However it is also submitted that Mr Sehtiya’s day to day running of the business is limited to his activities as a franchisee representative for Far North Queensland.

1. The next day in his oral evidence Mr Sehtiya told the Tribunal that he does not undertake any of the managerial duties which he delegates to another person so that he can focus on sales, at the Earlville store where he works as a team member, although this is not reflected in the organisational chart he has provided. Despite in writing suggesting he is physically absent from the Earlville store, he told the Tribunal he works there full-time. While in writing it is suggested his involvement in the business is limited to his activities as the franchisee representative he told the Tribunal that he performs this role in a voluntary capacity and that he has contact with other franchisees about 15 or 20 times a year. While the Tribunal accepts he might occasionally travel in relation to this role he has only provided documentary evidence of travel in October 2014 and he indicated he travelled in August 2015, and attends 4 meetings in Brisbane a year. The Tribunal is of the view that the bulk of this contact can be undertaken by email or phone. It is not satisfied Mr Sehtiya would voluntarily undertake a representative role that would significantly impact on his time when he could be managing his own business. The Tribunal is not satisfied Mr Sehtiya’s day to day running of the business is limited to his activities as a franchisee representative for Far North Queensland as claimed. While on the basis of material provided to the Tribunal it accepts that shortly after the applicant made this nomination application, Mr Sehtiya agreed to take on this role, it is not satisfied it is a full-time voluntary position which would prevent his involvement in the management of his own business.

2. In circumstances where Mr Sehtiya is the only person in the business who has undertaken the training conducted by the franchisor to manage the business, the Tribunal is also not satisfied that Mr Sehtiya would delegate all of the managerial tasks to another person, for which he is ultimately responsible. It is not satisfied he has adequately explained who is now managing the Earlville business, given his claim that the previous manager Mr Nasim has now left the business to move to a bigger city. The Tribunal finds his first explanation for working only on the till, that when he leaves the sales to the team members, the sales go down, to be unpersuasive. It is not satisfied he only works on the till in the evenings because of security issues. It is not satisfied Mr Sehtiya would neglect the management of his business for this reason when there are more suitable approaches such as the employment of  security. The Tribunal considers it highly unlikely that Mr Sehtiya works every evening only on the till and does not undertake any of the management tasks of his business, as he has agreed to do in accordance with the franchise agreement which indicates that he is the person trained and responsible for meeting the standards and KPIs. It is concerned that Mr Sehtiya has not been truthful about what he actually does in the business. This raises serious concerns for the Tribunal as to whether there is a genuine need for the store manager position as described in the position description, as the Tribunal is not satisfied Mr Sehtiya is not undertaking some or all of those duties.

3. The applicant has submitted that a nominated position was approved in 2013 for Mr Nasim. On the basis of the decision record provided to the Tribunal it is satisfied the Department has previously approved a nomination. However the Tribunal also notes that the applicant has provided to the Tribunal an organisational chart for the business which indicates that Mr Nasim was merely a team member in the Earlville store. This suggests to the Tribunal that before Mr Nasim left his employment with the applicant he was not working in the store manager position, but merely as a team member, despite the nomination having been approved. Also that chart does not indicate that Mr Sehtiya was working as a team member at Earlville. It indicates however that the position of store manager was vacant.

4. The franchise agreement states that the franchisee who wishes to employ a nominated manager must obtain prior written approval from the franchisor. In this case Mr Sehtiya has told the Tribunal that he does not have any written approval regarding the nominee. This indicates that in fact, as far as the franchisor is concerned, he continues to perform the management duties. The agreement also states that the nominated manager shall participate in induction training. Mr Sehtiya is the only person in the business who has undertaken this training. The Tribunal is not satisfied that no-one has been performing the management tasks at Earlville. It is of the view Mr Sehtiya has been performing some or all of the duties.

5. Having regard to all of the evidence before it the Tribunal is not satisfied there is a genuine need for a paid position. It is therefore not satisfied r.5.19(4)(h)(ii)(B) is met.

   Tasks of the position and skill level

6. The nomination was made on the basis that the occupation for the position of NightOwl Earlville Store Manager is ‘Retail Managers (General)’ (142111). The nomination application and submissions are that these are equivalent occupations for the nominated position. While the Tribunal is not persuaded that the position is needed it has considered the applicant’s evidence in relation to the actual position it claims it needs. This is to determine the tasks to be performed in the position. The Tribunal then considers those tasks against the ANZSCO descriptions.

7. The applicant has acknowledged that the position entails aspects of a Retail Supervisor but claims it also undertakes Retail Manager duties. The Tribunal has considered the written position description provided, described above, requiring the store manager to lead the store team by managing the store’s operations and to meet certain KPIs. Mr Sehtiya has submitted in the oral evidence that he does not undertake any of the managerial duties in the business. For the reasons set out above the Tribunal does not accept that this is the case. While it is prepared to accept that Mr Sehtiya may be assisted by the position to undertake some of the duties (as suggested in the written submission, for example with respect to recruitment, where it is indicated the position will provide the franchisee with advice, and then the franchisee will have the final say) it does not accept that the position will independently perform all of the duties. Also Mr Sehtiya is the only person in the business who has undergone the training provided by the franchisor.

8. The Tribunal also notes, in the written submissions, it is admitted that various activities are largely dictated by the franchise obligations, that the role entails some aspects of a retail supervisor and that some of the duties for a Retail Manager described in ANZSCO are not performed by the position, for example, the franchisor sets maximum prices and the franchisee is responsible for setting the overall budget.

9. The written position description provides significant details about meeting several complex KPIs in relation to sales growth, gross margins, costs and inventory management, store presentation, customer service, training and OH&S. When asked at the hearing about the duties of the position Mr Sehtiya merely said it will do banking and prepare for the security guard to collect the takings, check sales and stock levels, make orders, talk to suppliers,  be involved in promotions and hire staff. The Tribunal notes that the franchise agreement is prescriptive regarding the goods to be sold. While the Tribunal accepts that the business may not sell all of the items listed by the franchisor, it is of the view the position’s consideration of goods to be sold is limited to choosing items from the franchisor’s list. The Tribunal also notes the agreement restricts the franchisee’s choices regarding suppliers and that generally the franchisor negotiates trading terms with approved suppliers. In these circumstances it considers any negotiations with suppliers to be limited to a large extent by the franchise agreement. Similarly the agreement covers promotions and advertising, and also the processes for hiring staff. Mr Sehtiya admitted that the franchisor is advised when a position is vacant and it advertises on the franchisor’s website. It accepts he might also advertise on Gumtree.

10. According to ANZSCO, ‘Retail Managers (General)’ (142111) organise and control the operations of a retail trading establishment. The relevant tasks for this occupation appear under the ANZSCO Unit Group 1421 Retail Managers.  It is an ANZSCO Skill Level 2, which is a level of skill commensurate with an AQF Associate Degree, Advanced Diploma or Diploma. The tasks include determining product mix, stock levels and service standards. Having considered the franchise agreement, the Tribunal is of the view that, while there may be some flexibility with respect to the product mix and stock levels, these factors are essentially determined by the franchisor. A Retail Manager also formulates and implements purchasing and marketing policies, and sets prices. Again, the Tribunal is of the view that the formulation of these policies is undertaken by the franchisor. While there is some flexibility allowed regarding minimum prices, the franchisor is responsible for NightOwl branding, and in the main for the goods and services to be sold, the negotiations with suppliers, and the advertising.

11. The Tribunal accepts that the position will maintain records of stock levels. The Tribunal accepts Mr Sehtiya’s oral evidence indicating the position will do banking and prepare for the security guard to collect the takings.  On the basis of his written and oral evidence it is not satisfied the position will undertake the budgeting for the establishment. On the basis of the written submissions provided to the Tribunal, it accepts the position may have input in relation to the recruitment of staff but it does not accept the position will control the selection and training of staff as described for a Retail Manager in ANZSCO.  While the written material indicates the position will be involved in supervising staff, at the hearing Mr Sehtiya did not tell the Tribunal that the position will control the supervision of staff, a task described in ANZSCO for the occupation. He did however indicate that the position will ensure compliance with OH & S requirements. Overall the Tribunal is of the view the position will undertake only a few of the Retail Manager tasks described in ANZSCO.

12. Given the above findings about the tasks that the Tribunal accepts the position will undertake, it is not satisfied the position is that of a Retail Manager.

13. Another retail position described in ANZSCO is ‘Retail Supervisor’ (621511). A ‘Retail Supervisor’ is a person who supervises and coordinates the activities of retail sales workers. Its tasks include ensuring customers receive prompt service and quality goods. While Mr Sehtiya did not specifically state that the position will undertake this duty, good customer service is identified in the written description and the Tribunal accepts that anyone working in retail would be expected to undertake such a task. Similarly it is satisfied any employee at a convenience store would be expected to respond to customer inquiries and that a more senior employee may have to deal with complaints. Mr Sehtiya did not provide oral evidence that the position will be involved in planning and preparing work schedules and it is unclear from his evidence who it is that undertakes this role. While the Tribunal does not accept the position will control the recruitment of staff, it does accept, on the basis of the written submission, that the position will have some input into recruitment. It also accepts the position checks sales and stock levels, makes orders and talks to suppliers which is in line with the Retail Supervisor task taking inventory of goods and ordering new stock. It accepts that the position will ensure that OH & S procedures are followed which is consistent with the task ensuring safety and security procedures are enforced.

14. Having carefully considered the evidence, particularly the various documents issued by the franchisor, on the basis of the findings above, the Tribunal has reached a view that the position of Store Manager is best described as a Retail Supervisor. This is because, to a large extent, the position, which reports to the franchisee, must undertake its duties within the requirements of the franchise agreement. To a large extent the product mix is dictated by the franchisor. While there is some room to choose suppliers, the franchisor negotiates terms with approved suppliers and may charge management fees to do so. It sets the maximum price. The advertising and marketing material is produced by the franchisor, for which the franchisee pays a fee. The franchise agreement states that the franchisee will be responsible for employment of staff. While the Tribunal accepts the position will not report directly to the Retail Training Manager there is a requirement of the franchisee to report on various aspects of the business to demonstrate compliance with the franchisor’s standards. In relation to performance requirements, the franchisee is required to ensure these are met, the requirements are set by the franchisor, and the store’s compliance is monitored by the franchisor’s representatives. The Tribunal accepts that some of these tasks may be delegated to the position. However it is of the view that the determination and formulation of these tasks is set by the franchisor, and where there is flexibility the franchisee will ultimately decide in consultation with the position. The Tribunal accepts the position may have some involvement in decisions aimed at meeting standards it does not accept the position will ultimately be responsible for these decisions in circumstances where the franchisee, in this case the only person to have undertaken the franchisor’s training, is responsible for meeting the requirements of  the agreement. Having considered all the evidence and noting the store is a franchise business, the Tribunal does not accept that the appropriate occupation classification for the nominated position is that of ‘Retail Manager’.  In the Tribunal’s view, the position corresponds in tasks and skill level to the occupation of ‘Retail Supervisor’ as described in ANZSCO.  The differentiating tasks appearing in ANZSCO for ‘Retail Manager’ are only carried out by the Store Manager to a limited extent, or not at all. The Tribunal also does not accept that the Store Manager position has ultimate responsibility for organising and controlling the store’s operations. The Tribunal considers that this rests with the owner/franchisee, as would be expected under the terms of the franchise agreement.

15. As the Tribunal finds that the Store Manager position is a Retail Supervisor, it follows that the tasks to be performed correspond to ANZSCO Skill Level 4. Therefore, the requirement of r.5.19(4)(h)(ii)(D), and r.5.19(4)(h)(ii) as a whole, has not been met.

16. In considering whether r.5.19(4)(h)(i) has been met, the occupation of Retail Supervisor (or Retail Manager) are not specified by the Minister. The Tribunal finds that the requirements of r.5.19(4)(h)(i) have not been met.

17. Accordingly the requirements of r.5.19(4)(h) are not met. It is therefore unnecessary to consider the remaining requirements under r.5.19(4).

18. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

19. The Tribunal affirms the decision under review to refuse the nomination.

    Denise Connolly
    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

    (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 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)       both 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;

    (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 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 at a skill level of ANZSCO skill level 1, 2 or 3;

    (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).