1419260 (Migration)

[2016] AATA 3485

1419260 (Migration) [2016] AATA 3485 (11 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  NANDIKA CORP PTY LTD

CASE NUMBER:  1419260

DIBP REFERENCE(S):  BCC2014/1719306

MEMBER:Brook Hely

DATE:11 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2016 at 11:52am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 November 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 14 July 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.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation at ANZSCO skill level 1, 2 or 3.

5. The applicant appeared before the Tribunal on 19 February 2016, with Mr Manoj Malla giving oral evidence on the applicant’s behalf. The Tribunal also received oral evidence from the nominated worker for the position, Mr Ravikumar Pericherla. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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 extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   The application is compliant: r.5.19(4)(a)

8. 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, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

9. The nomination was made on the approved form and there is no fee payable for this application. The Tribunal is also satisfied from the evidence relating to the ongoing operations of the business (as discussed below) that the application has identified a need for the nominator to employ a paid employee under its direct control.

10. As the application was made prior to 14 December 2015, the requirement to provide written certification relating to conduct that contravenes s.245AR(1) does not arise.

11. Accordingly, the requirement in r.5.19(4)(a) is met.

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

12. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

13. In response to the Tribunal’s s.359(2) letter requesting evidence to show that it meets all the requirements of r.5.19(4), the applicant has provided several documents to show that the applicant is actively, lawfully and directly operating the relevant business in Australia. Specifically, the applicant has provided an ASIC company search and Record of Registration for Business Name in relation to the relevant business. The applicant has also provided recent Business Activity Statements, financial statements for the 2013/14 and 2014/15 financial years and recent payslips for the nominated worker. The Tribunal also received oral evidence at the hearing regarding the ongoing operations of business. The Tribunal is satisfied from this evidence that the requirement in r.5.19(4)(b) is met.

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

14. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator.

15. In the present case the nominator’s business activities do not include labour hire. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

16. 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 the possibility of an extension.

17. The applicant has provided a copy of the relevant employment contract which states explicitly that the position is a full-time position and will be available for at least 2 years after the subclass 187 visa application is granted. The Tribunal is satisfied from this document that the nominated position will remain open to the nominated worker for at least two years full-time without any express exclusion of the possibility of an extension thereafter.

18. The Tribunal has also considered the financial capacity of the applicant to ensure its ability to meet this commitment to providing two years of full-time employment to the nominated worker. The Tribunal acknowledges its concern that the financial statements for the business indicate a $2300 loss (after income tax) in 2014 and a relatively modest profit (after income tax) of $37,200 in 2015. However, the Tribunal is prepared to accept the explanation given at the hearing by Mr Malla that in 2013/14 the business was suffering with a low turnover from its Broome store which has since been rectified. The Tribunal also notes that the applicant has managed to meet its wage obligations in relation to the nominated worker at least since mid-2014 and possibly earlier (as discussed further below). The Tribunal was also given a recent letter from the applicant’s accountant attesting to the applicant’s financial capacity to fulfil its wage obligations to the nominated worker.

19. Having regard to these matters, the Tribunal is prepared to accept that the applicant possesses sufficient financial capacity to provide two years of full-time employment to the nominated worker in accordance with the proposed terms and conditions of employment. Accordingly, the requirement in r.5.19(4)(d) is met.

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

20. 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.

21. The terms and conditions in the employment contract for the nominated worker are consistent with the National Employment Standards. The Tribunal also notes that the applicant submitted a copy of the relevant employment contract for the equivalent position in the Broome store which is also operated by the applicant. The Tribunal accepts that this Broome position involves equivalent work being performed on the same terms and conditions in an equivalent workplace at an equivalently remote location.

22. Having regard to the above, the Tribunal is satisfied that the terms and conditions of 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.

23. The Tribunal is satisfied from the above that the requirements of r.5.19(4)(e) are met.

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

24. 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 such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

25. There is nothing before the Tribunal to show any adverse information known about the relevant business or anyone associated with it. The Tribunal also received oral evidence from Mr Malla confirming that neither the nominator nor any person associated with it has ever been the subject of any warnings, sanctions, investigations or any other problems with the Department or any other government agency, either in relation to this application or for any other reason.

26. The Tribunal is satisfied from the above that the requirements of r.5.19(4)(f) are met.

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

27. 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.

28. There is nothing before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with laws relating to industrial relations. The Tribunal also received oral evidence from Mr Malla confirming that the applicant had never been the subject of any warnings, sanctions, investigations or any other problems with any State, Territory or Commonwealth government agency involved with workplace relations. He also confirmed that the applicant has never had legal proceedings brought against it by any of its employees.

29. The Tribunal is satisfied from the above that the requirements of r.5.19(4)(g) are met.

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

30. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring 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 (see legislative instrument IMMI 15/091) and certain specified training benchmarks will be met: r.5.19(5)(h)(i)

    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: r.5.19(4)(h)(ii)

31. It is common ground that the tasks to be performed in the relevant position do not correspond to those of an occupation specified in IMMI 15/091. As such, the nomination must meet each of the requirements of r.5.19(4)(h)(ii).

    Business and position is located in regional Australia

32. The Tribunal accepts from the documents submitted that the relevant business and position are located in Western Australia, all of which is classified in the relevant instrument as regional Australia. The Tribunal is therefore satisfied that the requirements of r.5.19(4)(h)(ii)(A) and (E) are met.

    Genuine need for the paid position under the nominator’s direct control

33. As indicated earlier, the Tribunal is satisfied from the documents submitted that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. In making this finding, the Tribunal notes that the applicant has already been employing the nominated worker in the position for a substantial period of time and it accepts that there remains an ongoing need to employ someone in this role, particular given the significant geographical spread of the applicant’s other stores across Western Australia and the ongoing operational demands of this store.

34. The Tribunal is therefore satisfied that the requirements of r.5.19(4)(h)(ii)(B) are met.

    Position cannot be filled by a locally resident Australian citizen or permanent resident

35. The Tribunal acknowledges its reservation with respect to certain inconsistencies that emerged between the oral evidence of Mr Malla and Mr Pericherla with respect to the timing of Mr Pericherla commencing in the nominated position. According to Mr Malla’s oral and written evidence, the position was previously filled by another employee from December 2013 until July 2014. At that point, according to Mr Malla, Mr Pericherla was employed in the role following an attempt by the business to recruit locally for the position. Mr Malla also gave evidence that Mr Pericherla had previously been working in another United store operated by Mr Malla which was located at Lexia. By contrast, Mr Pericherla gave evidence that he was deployed from Lexia to Ridgeway to commence as manager from November 2013, very soon after the applicant had purchased the business. He gave evidence that he initially worked on a full-time basis for approximately 3 months, and then on a part-time basis between February – August 2015 whilst he completed his studies. He also confirmed that the previous employee in the role only occupied the role from around September or October 2013 until Mr Pericherla assumed the role in November 2013.

36. This anomaly in the evidence is arguably not of great significance. In either case, it is clear that Mr Pericherla has been performing his duties for a considerable period. However, the Tribunal notes its concern as to the genuineness of the recruitment exercise undertaken by the applicant purportedly to recruit locally for the position. On at least one view of the evidence, it would appear that Mr Pericherla was redeployed to this location from another similar store being operated by Mr Malla, well prior to the recruitment advertisement posted by the applicant in June 2014.

37. On the other hand, following the hearing the applicant provided copies of several resumes which were allegedly submitted in response to job advertisements posted by the applicant. Having regard to the other positive aspects to this application, the Tribunal is prepared to accept the oral evidence at the hearing regarding the significant difficulties in recruiting for a managerial skill level as required for this position given the significant geographical remoteness of the relevant store. The mere fact that the applicant redeployed a trusted employee from another store to this one does not contradict this point. To the contrary, the Tribunal accepts that the applicant adopted this course in large part due to the known difficulties in recruiting to such remote areas. The Tribunal is also prepared to accept that the applicant posted job advertisements in June 2014 and did not attract any other candidate superior to Mr Pericherla.

38. Viewing all of these matters together, the Tribunal is satisfied that position cannot be filled by an Australian citizen or permanent resident who was living in the same local area to where the position is located. The Tribunal is therefore satisfied that the requirements of r.5.19(4)(h)(ii)(C) are met.

    Tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3

39. The nominated position is a Retail Manager (General) (ANZSCO 142111). More specifically, the position is said to involve the management of a United service station located in Ridgeway (Geraldton), Western Australia. The service station incorporates a convenience store and hot food takeaway counter, as well as retail sale of fuel.

40. The delegate refused the nomination on the basis that the delegate was not satisfied that the tasks of the position corresponded to that of a retail manager. Rather, the delegate concluded that the tasks were more closely akin to that of a Retail Supervisor (ANZSCO 621511) which falls within ANZSCO skill level 6.

41. In resolving this question, it is helpful to first set out the relevant extracts from ANZSCO regarding the duties of these two positions. First, the description of a Retail Manager in ANZSCO is that it organises and controls the operation of a retail trading establishment outlet.  The relevant tasks of the position are as follows:

    odetermining product mix, stock levels and service standards

    oformulating and implementing purchasing and marketing policies, and setting prices

    opromoting and advertising the establishment's goods and services

    oselling goods and services to customers and advising them on product use

    omaintaining records of stock levels and financial transactions

    oundertaking budgeting for the establishment

    ocontrolling selection, training and supervision of staff

    oensuring compliance with occupational health and safety regulations

42. Other occupations falling within the same ANZSCO Unit Group are as follow:

    142111 Retail Manager (General)
    142112 Antique Dealer
    142113 Betting Agency Manager
    142114 Hair or Beauty Salon Manager
    142115 Post Office Manager
    142116 Travel Agency Manager

43. By contrast, the description of a Retail Supervisor in ANZSCO is that it sells a range of goods and services directly to the public on behalf of retail and wholesale establishments. The relevant tasks of the position are as follows:

    odetermining customer requirements and advising on product range, price, delivery, warranties and product use and care

    odemonstrating and explaining to customers the establishment's goods and services

    oselling goods and services

    oaccepting payment for goods and services by a variety of payment methods and preparing sales invoices

    oassisting with the ongoing management of stock such as product inventories and participating in stocktakes

    ostacking and displaying goods for sale, and wrapping and packing goods sold

44. Other occupations falling within the same ANZSCO Minor Group are as follow:

UNIT GROUP 6211 Sales Assistants (General)

         UNIT GROUP 6212 ICT Sales Assistants

         UNIT GROUP 6213 Motor Vehicle and Vehicle Parts Salespersons

         UNIT GROUP 6214 Pharmacy Sales Assistants

         UNIT GROUP 6215 Retail Supervisors

         UNIT GROUP 6216 Service Station Attendants

         UNIT GROUP 6217 Street Vendors and Related Salespersons

         UNIT GROUP 6219 Other Sales Assistants and Salespersons

1. The Tribunal acknowledges that there are a number of competing considerations when determining the appropriate ANZSCO code for this position. On the one hand, the relevant store operates as part of a larger franchise operated by United Petroleum Pty Ltd. As such, certain elements of managerial responsibility that might ordinarily vest with the individual manager of a store are dictated by the franchisor. For example, as was confirmed in the oral evidence at the hearing, all franchise stores operate under a standard United Franchise Manual which outlines various duties associated with the operation of the store. Similarly, the United head office dictates pricing with respect to fuel and provides guidance as to preferred suppliers and pricing for stocked items within the retail outlet operated as part of the premises. Additionally, the United head office dictates to franchisees with respect to various marketing promotions and campaigns.

2. Conversely, however, the Tribunal notes that it questioned Mr Malla and Mr Pericherla  separately over a period of approximately 2 ½ hours over a variety of day-to-day operational matters regarding the management of the relevant store. Subject to the question of when Mr Malla commenced in the role (discussed above), their evidence was generally consistent and detailed. The Tribunal also acknowledges that, following the hearing, the applicant has provided an assortment of business records which are consistent with the nominated worker having occupied the position of store manager. For example, the applicant provided a copy of daily, weekly and monthly site check forms ostensibly completed by the nominated worker, as well as an assortment of emails and text messages to and from the nominated worker relating to various day-to-day matters in running the store.

1. The Tribunal accepts from the oral evidence at the hearing, combined with the documents submitted, that the applicant operates United franchise petrol stations/stores at both Ridgeway (Geraldton) and Broome. The Tribunal also accepts that Mr Malla has other business interests under a separate company that operates United franchise petrol stations/stores in Kewdale and Mindarie (both suburbs of greater Perth). The Tribunal accepts from this evidence that Mr Malla’s business interests are geographically spread across very large distances within Western Australia. The Tribunal accepts that he is unable to maintain close or direct control over the operations of each of these businesses due to his inability to be physically present at the store locations for long periods of time. The Tribunal accepts that he generally only spends a couple of days per month at the Ridgeway store (where the nominated position is located) and is otherwise preoccupied in attending to his other business interests. As such, the Tribunal accepts that he is highly reliant on Mr Pericherla in managing the day-to-day operations of the Ridgeway store.

2. The Tribunal also accepts that, notwithstanding the Ridgeway store being part of a larger franchise operation, considerable autonomy still vests with the retail manager in undertaking a variety of tasks set out in ANZSCO. For example, the Tribunal accepts that Mr Pericherla  currently in this role demonstrates a large degree of autonomy in determining stock levels and product mix, albeit within United head office guidelines. The Tribunal also accepts that he has autonomy in setting prices for a variety of stocked items within the retail store (albeit not fuel), as well as prices for the attached restaurant. With respect to marketing policies, whilst the Tribunal acknowledges the significant role played by the United head office in general promotions, the Tribunal accepts that Mr Pericherla has autonomy in smaller scale promotions, such as to clear excess stock or food items approaching their expiry. The Tribunal accepts that a significant part of his role is involved with selling goods and services to customers and advising them on product use and that he is responsible for maintaining records of stock levels and financial transactions. The Tribunal also accepts that he undertakes budgets for the establishment, such as maintaining the correct level of stock, entering and analysing weekly sales figures and forwarding Excel spreadsheets containing financial data to the applicant’s accountant. The Tribunal also accepts that he has played a managerial role in connection with the employment of staff, albeit that this is often done in consultation with Mr Malla . The Tribunal also accepts that he plays a hands-on role in ensuring compliance with occupational health and safety regulations by staff and contractors at the premises. As such, the Tribunal is satisfied that the nominated position incorporates the majority of duties listed in ANZSCO.

3. The Tribunal has considered the alternate duties set out under ANZSCO with respect to a retail supervisor. The Tribunal acknowledges that there is a degree of overlap between these two positions, with the defining feature being primarily directed to the level of responsibility and control. As noted earlier, the level of responsibility and control in this position is diluted. The United head office dictates various standards, procedures and activities that must be adhered to by all of its franchisees. And, Mr Malla personally exerts a degree of responsibility and control over the Ridgeway store as part of his role as the director of the business and to discharge his obligations under the franchise agreement with United. Nevertheless, the Tribunal does not infer from the relevant duties enumerated within ANZSCO that a retail manager must operate with complete autonomy or that such a position is incompatible with the franchise and organisational structure applying in this case.

4. Weighing up all of the relevant factors, the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of a Retail Manager (General), which the Tribunal accepts to be an occupation at an ANZSCO skill level 1. The Tribunal is therefore satisfied that the requirements of r.5.19(4)(h)(ii)(D) are met.

   Regional certifying body

5. The Tribunal accepts from the certification document submitted with the application (Department file, folio 75 – 76) that a relevant certifying body has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C). The Tribunal is therefore satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met.

6. Having regard to the above, the Tribunal is satisfied that the requirements of r.5.19(4)(h) are met.

   Conclusion

7. 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

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

   Brook Hely
   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).