1419370 (Migration)

[2015] AATA 3185

1419370 (Migration) [2015] AATA 3185 (23 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AOK Business Enterprises Pty Ltd

CASE NUMBER:  1419370

DIBP REFERENCE(S):  BCC2014/2379915

MEMBER:Glen Cranwell

DATE:23 July 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 23 July 2015 at 12:01pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by vpa delegate of the Minister for Immigration on 12 November 2014 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 19 September 2014. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f).

4. Mr Gaurav Khunger appeared on behalf of the applicant before the Tribunal on 23 July 2015 to give evidence and present arguments.

5. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

   Position must be genuine

8. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

9. The applicant nominated Ms Gurpreet Kaur Bhatti for the position of Retail Buyer (ANZSCO 6392-11). 

10. The ANZSCO description of the duties of Retail Buyer is as follows: 

    UNIT GROUP 6392 RETAIL AND WOOL BUYERS

    
    RETAIL AND WOOL BUYERS select and buy goods for resale in retail establishments, and value and buy wool sold by wool growers.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    omonitoring sales data and stock levels, and studying trade, manufacturers' and market information to keep informed of changing market conditions

    onegotiating purchase, promotion and supply arrangements with suppliers

    odesigning and implementing pricing, marketing, promotional and display strategies

    oliaising with management on long-term planning and sales promotions

    oestablishing working plans according to seasonal and budgetary requirements

    oanticipating consumer trends and determining quantity, style and quality of goods to be purchased

    o…

    
    Occupations:

    639211 Retail Buyer
    639212 Wool Buyer

    
    639211 RETAIL BUYER

    
    Selects and buys goods for resale in a retail establishment.

    Skill Level: 3
    Specialisation:

    Merchandise Planner

11. The Tribunal has used this as a guide only.

12. The applicant’s representative lodged written submissions immediately prior to the hearing, which the Tribunal has considered.

13. Mr Khunger gave evidence that the applicant operates 2 stores.  It operates a Foodworks store at Aspley.  This store has 4 employees, including a retail buyer.  The store is open from 6 am to 11 pm daily.  It is 180-190 sqm, which Mr Khunger stated was not the size of Woolworths but a little bit bigger than a 7-11 store.

14. The other store is a non-branded convenience store at Marburg.  It sells newspapers and magazines, takeaway food and grocery items.  The store has 6-8 employees, including Mr Khunger.  It is 300 sqm, and is open from 5.30 am to 8 pm.

15. The Tribunal asked Mr Khunger to list the nominee’s duties.  He listed her duties as follows:

    ·purchasing merchanise from different vendors;

    ·getting the budget from Mr Khunger;

    ·talking to the suppliers about their special pricing and negotiating with them;

    ·placing new products and promotional programs;

    ·reporting on these matters to Mr Khunger.

16. This broadly accords with the written description of the nominee’s duties provided by Mr Khunger to the Department (folio 21 of the Department file), and the statutory declaration of Ms Bhatti provided to the Tribunal.

17. Mr Khunger gave evidence that the Aspley store has 20-25 suppliers, and the Marburg store has more than 25 suppliers.  The main supplier is Metcash, which accounts for between 10% and 50% of the orders placed depending on pricing.  The retail buyer is required to compare the prices of Metcash with other suppliers, including Woolworths and Coles supermarkets.  If items are cheaper at a Woolworths or Coles supermarket, they are purchased from the supermarket for resale in the applicant’s stores.

18. Mr Khunger stated that 2 retail buyers are necessary, because the Aspley store is affiliated with Foodworks and the Marburg store is affiliated with the Friendly Grocer.  Metcash has different pricing structures for each affiliation.

19. The Tribunal asked whether the retail buyers ever serve customers at the check out.  Mr Khunger initially stated that they did not, then stated that they would work no more than 5-10 hours per week on the check outs.

20. The Tribunal put to Mr Khunger that the nominee’s position may involve the ordering of goods, but this did not necessarily make her position one of retail buyer.  A retail buyer is a specialist position, normally to be found in a much larger organisation.  For example, a supermarket chain or a department store might employ a retail buyer.  Given the nature and size of the business, the Tribunal might doubt whether the applicant was employed as a retail buyer.  The Tribunal noted that someone would be required to order goods for a convenience store, but a convenience store would not have a retail buyer. 

21. Mr Khunger stated that the supply chain for 7-11 stores is set by head office.  They made an order once a week, using sophisticated software.  It would not take more than 1-2 hours per week to make orders.  In his stores, it takes a lot of time to do the orders and promotions.  They have to negotiate deals with a range of representatives.  Coles and Woolworths have sophisticated software and large purchasing power.

22. The Tribunal asked Mr Khunger to respond to the proposition that a non-branded convenience store, not a 7-11, would not have a retail buyer.  Mr Khunger stated that groceries would normally be purchased from Metcash.  They provide a specials price list, but sometimes their specials pricing is more than items are being sold for by Coles or Woolworths, so they sometimes purchase items from Coles or Woolworths.  They also compare prices with other suppliers, such as Coca-Cola itself in the case of softdrinks.

23. The Tribunal asked why the store managers could not make the orders with suppliers.  Mr Khunger stated that the store managers look after the day to day operations of the stores.  This includes customer service, cleaning, stock management, stock rotation, takeaways and other facilities.

24. In considering if the position associated with the nominated occupation of Retail Buyer is genuine, the Tribunal accepts that the nominee carries out some aspects of the work of a Retail Buyer albeit in the context of a small-scale grocery food business. Some tasks that the applicant performs are similar to aspects of the tasks in the ANZSCO guide for the occupation of Retail Buyer. However, the Tribunal is not satisfied from Mr Khunger’s own evidence at hearing that the nominee’s role encompasses such tasks at the higher skill level described in ANZSCO.  The Tribunal considers that these aspects of the position’s duties flow directly from general operations of the business in providing goods to the public on a day to day basis. The Tribunal considers that these aspects are put into practice on a basic level.  For example, purchasing items from Coles and Woolworths supermarkets where it is cheaper to do so than from Metcash is not at the skill level described in ANZSCO.

25. Furthermore, the Tribunal is not satisfied that the scale and activities of the business are such that a designated Retail Buyer performing the range of duties as described in ANZSCO and at the skill level indicated is necessary to the operations of the business. The applicant has a total of 10-12 employees, including Mr Khunger and 2 store managers.  The Tribunal considers the retail buyer aspects of the position derive directly from the essential nature of retail business, and would be a standard feature of any such retail operation.  It is trite to state that any retail business selling goods needs to purchase those goods in order to sell them.  However, not all retail stores need (or indeed have) a Retail Buyer. 

26. Based on Mr Khunger’s evidence at the hearing, and taking into account the other written material provided to the Department and the Tribunal, the Tribunal is not satisfied that the position includes a significant majority of the range and skill level of tasks as set out in ANZSCO for the occupation of Retail Buyer. The Tribunal does not accept that the position of Retail Buyer in the context of a small-scale grocery food business is genuine. The Tribunal does not accept that the duties of the position amount to the position of Retail buyer, having regard to the size and nature of the business and the duties described in the ANZSCO guide.

27. For these reasons the requirements of r.2.72(10)(f) are not met.

28. For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

29. The Tribunal affirms the decision not to approve the nomination.

    Glen Cranwell
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

    (1)This regulation applies to a person who is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister);

    who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

    (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that the person is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister).

    (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

    (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

    (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

    (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

    (7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (7A)In addition to subregulation (6):

    (a)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

    (b)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

    (iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

    (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

    (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

    (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

    (b)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a standard business sponsor;

    the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

    (c)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a party to a work agreement;

    the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (9)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    Note   The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).

    (10)If the person is a standard business sponsor — the Minister is satisfied that:

    (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

    (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and

    (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

    (c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and

    (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

    (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ASCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ASCO; or

    (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

    (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ANZSCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ANZSCO; or

    (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

    (f)the position associated with the nominated occupation is genuine; and

    (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

    (i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

    (ii)      if:

    (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

    (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

    (iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

    (iv)     unless subparagraph (ii) applies—the holder:

    (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

    (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

    (h)either:

    (i)       the person will:

    (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

    (B)give a copy of that contract to the Minister; or

    (ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

    (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

    (a)the terms and conditions of employment; and

    (b)the base rate of pay, under the terms and conditions of employment;

    that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

    (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

    (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

    (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

    (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

    (c)the Minister considers it reasonable to do so.

    (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

    (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

    (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

    (B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

    (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

    (B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

    (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.