1505077 (Migration)

1505077 (Migration) [2015] AATA 3835 (10 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Xiamen Pty Ltd
CASE NUMBER:  1505077
DIBP REFERENCE(S):  BCC2014/2284069
MEMBER:Kate Millar
DATE:10 December 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 10 December 2015 at 4:34pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Xiamen Pty Ltd (Xiamen) operates four petrol stations in Western Australia, and wants to employ a retail manager for the site in North Malaga. It applied for the approval of a nomination of a retail manager for this site, but a delegate of the Minister for Immigration and Border Protection refused the application. The delegate refused the nomination because she was not satisfied that the tasks of the position correspond with the tasks of a retail manager as specified in the Australian and New Zealand Standard Classification of Occupations (ANZSCO), and therefore the tasks of the position were at the skill level required for the nomination to be approved. Xiamen seeks review of the decision to refuse the nomination.
Xiamen applied for approval on 11 September 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Migration Regulations 1994 (the Regulations) which contains two alternative streams, and of these Xiamen has applied for approval in the 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).
Mr Teh, a director of Xiamen, appeared before the Tribunal on 8 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence the nominee Mr Adireddy. Xiamen was represented in relation to the review by its registered migration agent.
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
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)
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. The application was made on the approved form, there is nothing to indicate the fee was not paid and the application identified a need for a paid employee to work under the direct control of Xiamen. 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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. Xiamen provide to the Department its ASIC extract and 2014 financial statements. A check of the Australian Business Register shows it has an active Australian Business Number. Xiamen provided a number of invoices for goods for the Caltex at Malaga and the covering letter for the franchise agreement for this site. I am satisfied it is actively and lawfully operating in Australia and directly operates the business at Malaga.
Position is not labour-hire: r.5.19(4)(c)
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. As Xiamen’s business does not include labour hire, this does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
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.
The employment contract states the employment is full time for two years and ongoing full time after the visa is granted. Mr Teh said the franchise agreement for the North Malaga site is ongoing. As he has a good record with the franchisor he expects the franchise agreement to continue into the future. There is nothing before me to suggest the franchise agreement, and therefore the nominee’s employment, would not continue.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
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.
The nominee’s annual salary in the payslips provided with the application is $37,648 and the salary nominated is $51,000. Mr Teh said that following a review of the salary he realised the standard pay was $51,000 and had been paying the nominee that salary since the start of this financial year. The Fair Work Ombudsman lists a level 8 retail employee wages under the General Retail Industry Award 2010 at approximately $45,900.
The employment contract contains provisions for superannuation, annual leave, other leave and redundancy in accordance with the National Employment Standards.
The employment contracts specifies 40 hours per week and the National Employment Standards specify a maximum standard working week of 38 hours per week plus reasonable additional hours. Mr Teh said that the hours included in the contract include meals breaks, which accounts for the additional two hours per week. Mr Adireddy said he generally works from 6am until 2 pm, and may do an additional hour on Monday when sales from the weekend need to be entered.
While I had some concern about the hours in the maximum standard working week, on balance I am satisfied the terms and conditions are no less favourable than would be provided to an Australian citizen or permanent resident.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
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. There is no adverse information before me about Mr Teh or Xiamen.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
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. There is nothing to indicate Xiamen does not have not have a satisfactory record of compliance with laws relating to workplace relations.
Accordingly 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)
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:
·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.
The position and business are located in Western Australia, all of which is classified as regional Australia (IMMI 11/058).
Mr Teh said Xiamen has four Caltex franchises, and this is reflected in documents provided to the Department. He says he spends his time on all of these sites and pursuing other business opportunities and his investments in the stock market. I accept that Mr Teh is not available for the day to day operation of the site and Xiamen has a genuine need for a paid position that manages the operations of the business on each of the franchise sites.
Mr Teh said that he has tried to recruit for these positions but has not been able to find a candidate with suitable skills. He last advertised on Gumtree and Seek four to six months ago and interviewed some candidates however said they did not meet his expectations due to lack of experience. He said asks at interview how they would respond to different situations, and found the responses not as mature as Mr Adireddy. On balance, and with the benefit of certification of Skilled Migration WA, I am satisfied that the position cannot be filled by a locally resident Australian citizen or permanent resident.
The delegate was not satisfied the tasks of the position correspond to those of an occupation at ANZSCO skill level 1, 2 or 3. Xiamen said the tasks of the position correlate with those of a retail manager, which is a skill level 2. The delegate considered the position more like a retail supervisor with a skill level 4.
A retail manager is described in ANZSCO as organising and controlling the operations of establishments that provide retail services. The tasks listed include:
·determining product mix, stock levels and service standards
·formulating and implementing purchasing and marketing policies, and setting prices
·promoting and advertising the establishment's goods and services
·selling goods and services to customers and advising them on product use
·maintaining records of stock levels and financial transactions
·undertaking budgeting for the establishment
·controlling selection, training and supervision of staff
·ensuring compliance with occupational health and safety regulations
A retail supervisor supervises and coordinates the activities of retail sales workers. The tasks include:
·ensuring that customers receive prompt service and quality goods and services
·responding to customers' inquiries and complaints about goods and services
·planning and preparing work schedules and assigning staff to specific duties
·interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances
·instructing staff on how to handle difficult and complicated sales procedures
·examining returned goods and deciding on appropriate action
·taking inventory of goods for sale and ordering new stock
·ensuring that goods and services are correctly priced and displayed
·ensuring safety and security procedures are enforced
Mr Teh said that the nominee is undertaking all the tasks associated with running the business at the site within target, such as sales targets, that Mr Teh sets. Mr Adireddy is responsible for recruitment and training of staff, and Mr Teh meets new staff members after they are recruited and trained. Mr Adireddy manages underperforming staff, however Mr Teh is involved when a decision is made to terminate the staff member’s employment. Mr Teh is advised of any emergencies on the site, for example robbery. There was an armed robbery at the site the week before the hearing. Mr Teh said he ensured that Caltex procedures were followed after the holdup.
Mr Adireddy ensures occupation health and safety requirements are followed, checks equipment and maintains records of these checks as required by the franchisor. Mr Teh said the biggest safety risk at a petrol station is the LPG, and Mr Adireddy performs and records the checks on the LPG equipment. Mr Adireddy does the training for staff and the required staff assessments.
Mr Teh attends the business once a week to review the progress against the targets he sets on purchasing and turnover. Mr Teh said when he visits he looks at the site to make sure it is clean and well maintained, and assists Mr Adireddy if he has any questions. Mr Teh attends with Mr Adireddy if Caltex representatives come to conduct an audit or to inspect the site.
Mr Teh said Caltex provides “planograms” of the layout of the stock and the items that are to be stocked. Nearly all items are purchased through Caltex, but Mr Adireddy decides quantities. Mr Teh said that having Mr Adireddy in the position has allowed him to increase profit by 20% since taking over the business as they do not have stock ordered in excess of their requirements. Mr Teh said Mr Adireddy does all of the ordering, and purchases approximately $20,000 of goods per week.
I consider the tasks involved in the position are more like a retail manager in managing a controlling a retail establishment than a retail supervisor who supervises and the work of retail sales staff. Mr Adireddy is responsible for the operation of the site, including safety checks, reporting to the franchisor and budgeting and these tasks are in excess of what would be required by a retail supervisor. While Mr Adireddy has limited opportunity to determine provide mix and prices, he manages stock levels and has overall responsibility for management of the site.
Xiamen provided the required certificate from the regional certifying body, Skilled Migration WA.
Accordingly I find that the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that Xiamen meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Kate Millar
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).

[2015] AATA 3835

10 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction