1416697 (Migration)

[2015] AATA 3302

1416697 (Migration) [2015] AATA 3302 (19 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Paleka Pty Ltd ATF The Michael Paleka Trust

CASE NUMBER:  1416697

DIBP REFERENCE(S):  BCC2013/2170054

MEMBER:Marten Kennedy

DATE:19 August 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 19 August 2015 at 11:51am

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 September 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 on 23 December 2013. 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). In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.

3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations. The substantive issue of concern to the delegate was whether the applicant required an ‘additional’ Retail Manager in circumstances where the delegate identified the business already employed a ‘specified person’ (as referred to in franchise agreement), and two Store managers.

4. 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 must identify a need for the nominator to employ a paid employee to work in the position under their direct control. I consider that the requirements of this paragraph will be fulfilled on the face of the application for approval of the nominated position. This part of the regulation does not call for an objective assessment of the need for the nominated position. On this basis, I have examined the application for approval on the Departmental file and note the prescribed fee has been paid and there is identified on the application a need for the nominator to employ a paid employee to work in the position under their direct control. I find that the requirement in r.5.19(4)(a) is met.

5. The substantive issue of concern to the delegate is best addressed by considering the requirements of r.5.19(4)(h).

6. Regulation 5.19(4)(h) can be satisfied in one of two alternative ways. Either:

   ·    the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, and certain specified training benchmarks will be met; or

   ·    the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, 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.

7. In this case the nomination application relates to an application for a subclass 187 visa. The specifications of occupations by the Minister in the applicable instrument for the purpose of r.5.19(4)(h)(i)(A) are expressed to be ‘for a Subclass 186 visa’, and it follows therefore that no occupation is specified by the Minister for a Subclass 187 visa. The first alternative means of satisfying r.5.19(4) is therefore not available to the applicant in this case.

8. The second alternative requires (among other matters) there be a genuine need for a paid position under the nominator’s direct control and that the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1,2, or 3.  As to whether the tasks of the position corresponds to an occupation at the ANZSCO skill level 1, 2, or 3, the nominated occupation is Retail Manager ANZSCO 142111.  ANZSCO provides that the occupation is a skill level 2 occupation.  It is convenient for me therefore to decide whether the tasks of the position correspond to the skill level 2 occupation identified, and also therefore whether there is a genuine need for the paid position.

9. The applicant was represented by Mr Paleka, the director and owner of the corporate entity operating the business.

10. Mr Paleka explained to me that the company operates an Oporto restaurant at Tranmere.  He first owned an Oporto restaurant at City Cross, which was the first Oporto business in South Australia.  Mr Paleka told me that the restaurant offers extended trading hours from 8am to midnight, Sunday to Thursday.  The business employs a large number of staff of 25 to cover those hours.

11. Mr Paleka explained that within the business he employs the visa nominee as the store and operations manager.  The visa nominee runs the store when he, the owner, is not present.  There are two other managers at the store but they report to the visa nominee.  Those positions are shift supervisors, but the visa nominee is more akin to an operations manager.  Mr Paleka told me that the visa nominee attends to all the rostering and completes profit and loss information for him to review as the owner.  The visa nominee undertakes all ordering and stock control, attending to the business side of the operations.  Mr Paleka explained that the visa nominee has tertiary qualifications in economics, and he is trusted to focus on the financial side of the business.

12. Mr Paleka also told me that the visa nominee is primarily responsible for recruitment, but would be expected to discuss decisions with him before acting.   Mr Paleka described the process used for firing staff, explaining the visa nominee would manage the process but the ultimate decision would be made at a joint meeting between the visa nominee, the owner and the staff member concerned.  Mr Paleka retains ultimate financial control and the applicant would require his approval before any unusual or significant expenditure of money.

13. In relation to rostering, the roster is prepared by reference to the profit margins and projected sales.  Rostering must be kept within a percentage for labour – and the visa nominee is responsible for this.

14. As for payroll, the business has contracted with a payroll company, but it is the visa nominee who logs on to that company’s system and enters the data required for the salaries to be paid.  The visa nominee has all the dealings with the payroll company, and holds the necessary passwords.

15. I explored with Mr Paleka his own role in the business.  Mr Paleka explained he also works in the business from time to time, but is exploring purchasing another store elsewhere.  In this regard, Mr Paleka explained that the Tranmere store is the third Oporto store he has operated, having previously operated Oporto stores in City Cross and Marion.  These businesses have been sold.  Mr Paleka explained that he has a need for an employed manager to allow him to pursue expansion elsewhere (Mr Paleka’s evidence at the hearing in this regard was more specific).

    Consideration

16. I have taken into account the delegate’s concerns arising from the terms of the franchise agreement requiring the franchisee to ensure that at least one ‘Specified Person or Store Manager is working at the Premises at all times while trading’.  This provision does not in my view inform on whether there is a genuine need for the nominated position or whether the tasks of such a position correspond to a skill level 2 occupation.  It is merely a requirement that the franchisee have a person known to the franchisor as a person with managerial authority for the operations of the premises on site at all times while trading.  That may be the owner or the manager, or indeed a position that might be more akin to a shift supervisor when regard is had to the extended trading hours of the business that would make it impractical for a single employee to be present during all trading hours.

17. I accept the evidence of Mr Paleka.  He provided detailed and convincing responses to my questions about the operations of his business and the role of the position held by the visa nominee.

18. I have had regard to the ANZSCO description of the occupation of Retail Manager.  I consider that there is sufficient consistency between the general description of the occupation and the example tasks set out in ANZSCO for the occupation for me to accept that the tasks of the occupation correspond to those of a Retail Manager.  I accept that the tasks of the position correspond to those of an ANZSCO Retail Manager, and therefore I accept that the tasks of the position correspond to an occupation at the ANZSCO skill level 2.

19. I also accept that  there is a genuine need for the paid position nominated, and that the position is under the nominator’s direct control.  I accept that the Oporto restaurant is large enough to warrant the need for a full time manager, and the tasks and duties assigned to that position are such that I accept it to genuinely be a management position.   I reach this view conscious that for the time being Mr Paleka is also working in the business, but I place weight on his evidence of having previously owned multiple stores and the need to have the Tranmere store subject to the control of an employed manager to enable him to expand his business elsewhere.  I also place weight on the evidence of the visa nominee’s salary to infer that the position is genuinely required and a management position.

20. Finally, I find that the business is located in ‘regional Australia’ and that the position cannot be filled by a locally resident Australian citizen or permanent resident.  In this regard, I accept the opinion of the Regional Certifying Body (the Government of South Australia), and note that the Government of South Australia has advised the Minister about the matters relating to the position required by the Regulations.

21. Accordingly the requirements of r.5.19(4)(h) are met.

    Other requirements for approval of the nomination

22. 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). For the nomination to be approved, all the requirements must be met. I turn to address the remaining requirements of the Regulation.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

23. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.  I have examined financial and taxation records provided to the Department and to the Tribunal in this regard and am satisfied the nominator is actively and lawfully operating a business in Australia and directly operates that business

24. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

25. Regulation 5.19(4)(c) applies to nominators’ whose business activities include those relating to labour hire to an unrelated business. This is inapplicable to the present case, and in that sense I am satisfied that the requirement in r.5.19(4)(c) is met.

    Term of employment of the visa holder: r.5.19(4)(d)

26. 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 extension of the employment.  I have had regard to a contract of employment held on the Department’s file and provided to the tribunal and am satisfied that the length and nature of the employment meet the requirements of this Regulation, and there is no express exclusion of extension beyond 2 years.

27. As to the financial capacity of the company to meet employment related expenses, I invited Mr Paleka to provide further information regarding the financial position of the company after the hearing.  In this regard, I received correspondence from company’s Chartered Accountant,  Mr Nathan Kentish, dated 3 July 2015.

28. Conscious of the commercial sensitivity of this information, it is sufficient that I indicate that I accept the explanations provided by the accountant in that correspondence, addressing concerns I had raised at hearing.  I also accept the opinion of the accountant, positive as to the company’s financial capacity to meet ongoing wage requirements.

29. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

30. 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.

31. I note the terms and conditions of employment set out in the letter of engagement of 13 August 2013 indicate that the terms and conditions are at a minimum those set out in the Restaurant Industry Award of 2010.  I have examined a more detailed employment contracted of the same date subsequently provided and identified no terms that detract from the terms and conditions in the Restaurant Industry Award of 2010.

32. In terms of salary, I have also taken into account corroborating evidence of the applicant’s PAYG Group Certificates demonstrating that salary has in fact been paid consistent with the terms of the letter of engagement.

33. I am satisfied that the terms and condition applicable to the 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. Accordingly the requirements of r.5.19(4)(e) are met.

34. I also accept the opinion of the Government of South Australia, expressed in the regional certification, as to whether the requirement of r.5.19(4)(e) is met.

    No adverse information known to Immigration: r.5.19(4)(f)

35. 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 adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7).

36. No such information has been brought to my attention by the Department. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

37. 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.

38. There is no adverse information before me in this regard. I therefore am satisfied that the requirements of r.5.19(4)(g) are met.

    Conclusion

39. 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, and I approve the nomination.

    DECISION

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

    Marten Kennedy
    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).