1502399 (Migration)

1502399 (Migration) [2015] AATA 3859 (16 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Shanti Corporation Pty Ltd ATF Vinodkumar Patel Trust
CASE NUMBER:  1502399
DIBP REFERENCE(S):  BCC2014/3193467
MEMBER:Christopher Smolicz
DATE:16 December 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 16 December 2015 at 9:13am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 February 2015 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).
The applicant applied for approval on 25 November 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10(f) because the delegate was not satisfied the position associated with the nominated occupation was genuine. The nominated position is for a Retail Buyer (ANZSCO 639211).
The applicant appeared before the Tribunal on 7 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
Mr Patel is the director of Shanti Corporation Pty Ltd Atf Vinokumar Patel trading as Shanti Supermarket.
Shanti is a retail supermarket which sells Indian grocery products such as frozen foods, dry fruit, masalas, fruit and vegetables in Greenacres, South Australia.
Mr Patel commenced operating Shanti Supermarket in January 2011 as a sole trader. In September 2013 Mr Patel changed the structure of the business from a sole trader to a trust structure. The business has three employees.
Mr Noorali Barkatali Hudda (the visa applicant) is an Indian national who travelled to Australia with his wife who is the primary holder of a student visa. He is employed as a part time employee working 20 hours per week. Mr Patel said that Mr Hudda was one of his loyal customers who expressed interest in working in the business. Mr Patel said he did not advertise the position and employed Mr Hudda as a Retail Buyer. He is responsible for buying goods, checking expiry dates and display stock. He is paid $490 per week.
Mr Patel’s wife works full time as a cashier, preparing takeaway food and dealing with customer relations. She is paid about $25,000 per year.
Mr Patel said he works in the business and has varied responsibilities which range from dealing with suppliers, buying goods, checking the needs of customers, checking stock levels. Mr Patel said that the demands on his time have increased as the business has grown and he operates three businesses. When Mr Hudda is busy he helps out with the retail buying duties.
Mr Patel said that he is involved in organising events, takeaway business and selling fresh fruit and vegetables. When asked to provide further evidence of his other business activities he explained that the business activity is all carried out from the same premises, under the same ABN and is a part of the supermarket business. Mr Patel said he is paid about $20,000 per year.
The Tribunal asked Mr Patel to provide evidence about the profitability of the business. Mr Patel said that when he was operating as a sole trader for 3 months in 2011 he made about $10,000 profit. Mr Patel said that under the trust structure, for the financial year ending June 2014 the profit is about $25,000. Mr Patel said that the full time Retail Buyer would be paid $60,000 per year.
Mr Patel said that in the financial year ending June 2015 the business sales were $750,000. He claims the projected growth for the 2016 financial year is 30% and he expects sales of $975,500. It was submitted he expects sales to increase to $1,267,500 in 2017. The applicant said the projected figures were based on his estimates. The Tribunal requested Mr Patel to provide further business documents to support his evidence.
The Tribunal noted that the delegate was of the view that the position of Retail Buyer was not necessary to the operation of the business and was usually associated with large department stores or chains of stores which need to purchase goods on a large scale.
The Tribunal asked Mr Patel to explain why there was a need for a Retail Buyer in his business. Mr Patel said that since he started the business as a sole trader in 2011 it has grown in size and now he operates three businesses from the same premises. Mr Patel said he does not have enough time to negotiate the best price for items sold by the business and needs a full time Retail Buyer. The Retail Buyer would display stock, ensure stock is of the correct quality and purchased at a competitive price. Mr Patel said that he stocks between 700 to 800 lines of item and caters for Indian clients who require different products depending on festival celebrations.
The Tribunal put to Mr Patel that the position may involve ordering goods, but this did not necessarily make the position one of a Retail Buyer. A Retail Buyer is a specialist position, normally to be found in a much larger organisation, such as a supermarket chain or a department store. Given the nature and size of the business, the Tribunal might doubt whether the position was that of a Retail Buyer. The Tribunal also put to Mr Patel that many of the duties of the nominated position were those undertaken by a Retail Manager (ANZSCO 142111) or a Retail Supervisor (ANZSCO 621511), and may not be at the level or complexity of the duties undertaken by a Retail Buyer.

Post hearing submissions

In post hearing submissions the Tribunal was provided with correspondence confirming the applicant was approved as a Standard Business Sponsor on 13 October 2015.
The Tribunal was not provided with any financial evidence to support the applicant’s projected growth figures detailed in paragraphs 17.
The Tribunal was provided with the following financial records:
·     Accountant’s letter and Profit and Loss statement for The Trustee for Vinod Kumar Patel trading as Shanti Supermarket for the financial year ending 30 June 2015 confirming that the business made a net profit of $30,611 and paid $26,880 in salaries.
·     PAYG Payment summary confirming that for the financial year ending June 2015 Mr Hudda was paid $2,880 and Kailashbahen Patel was paid $24,000.
·     Payroll Activity statement confirming that in the period 1 July 2015 to 30 November 2015 Mr Hudda was paid $10,560.
·     BAS covering the period 1 July 2015 to 30 September 2015 disclosing total sales of $20,6706

Findings

In considering the nature of the position and the occupation, the Tribunal is guided by the skill level and tasks for a Retail Buyer as set out in Australian and New Zealand Standard Classification of Occupations (ANZSCO). The Tribunal considers that it is reasonable to compare the tasks of the actual position with the tasks of the nominated occupation as listed in ANZSCO. In doing so, the Tribunal has not placed absolute reliance on ANZSCO and has used ANZSCO as a guide, rather than an exhaustive list of duties.
The ANZSCO sets out the indicative skill level and tasks for a Retail Buyer 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)
…
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…
639211 RETAIL BUYER
Selects and buys goods for resale in a retail establishment.
Skill Level: 3
Specialisation:
Merchandise Planner
In this case, the Tribunal has several concerns in relation to whether the position associated with the nominated occupation is genuine.
In the 2015 financial year the business paid $26,880 in salaries and made a net profit of $30,611. The turnover in the last financial year was $265,374. The Tribunal does not accept that an organisation with a total of 3 staff members and one retail outlet would need a full-time designated retail buyer.
The Tribunal does not accept that the position is consistent with the scale and activities of the business or necessary to the operations of the business.
As discussed with the applicant at the hearing, a Retail Buyer is a specialist position, normally to be found in a much larger organisation, such as a supermarket chain or a department store.
Mr Patel claims the nominee has been performing the nominated position since November 2013 and that the turnover of the business has substantially increased since the nominee started performing the Retail Buyer role and the position is required for the business to expand further. The Tribunal has considered Mr Patel’s evidence about duties undertaken by the nominee and the position description provided to the Tribunal. The Tribunal accepts that the position involves some aspects of the work of a Retail Buyer, albeit in the context of a small-scale Indian supermarket /grocery store. These aspects are put into practice at a basic level. The Tribunal accepts that the nominee monitors sales data and stock levels, negotiates purchase price and supply arrangements with suppliers, and prices goods.
The Tribunal considers that any aspects of the position which overlap with the duties of a Retail Buyer derive directly from the essential nature of retail business in providing goods to the public and would be standard feature of any such retail operation. All retail business need to purchase goods in order to sell them, but not all retail stores need (or indeed have) a Retail Buyer.
The Tribunal is not satisfied from Mr Patel’s evidence that the position encompasses the tasks of a Retail Buyer at the higher skill level or complexity as described in ANZSCO. The Tribunal does not accept that the position involves studying trade, manufacturers’ and market information to keep informed of market conditions; liaising with management on long-term planning and sales promotions; establishing working plans according to seasonal and budgetary requirements or anticipating consumer trends, at the level and complexity that is required by a designated Retail Buyer.
The Tribunal considers that the majority of the duties of the nominated position, as set out in the position description and Mr Patel’s evidence, are more closely aligned with that of a Retail Manager (ANZSCO 142111) or a Retail Supervisor (ANZSCO 621511) and do not require the specialised skills of a Retail Buyer. For instance, a Retail Supervisor takes inventory of goods for sale and orders new stock, ensures that goods and services are correctly priced and displayed, and ensures that customers receive prompt service and quality goods and services. A Retail Manager determines product mix and stock levels and maintains records of stock levels.
The Tribunal notes that neither Retail Manager nor Retail Supervisor are occupations specified by the Minister in an instrument in writing for the purpose of r.2.72.
Based on Mr Patel’s evidence at the hearing and the other written material before it, 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 is genuine, in the context of a small Indian supermarket/grocery business that consists of one retail outlet where there are only two full-time and one part time employee, including the nominee.
For these reasons the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Christopher Smolicz
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.

[2015] AATA 3859

16 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice