1508205 (Migration)

[2016] AATA 3247

1508205 (Migration) [2016] AATA 3247 (15 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Aaran Group (WA) Pty Ltd ATF Harkrish Family Trust

CASE NUMBER:  1508205

DIBP REFERENCE(S):  BCC2015/240109

MEMBER:Christopher Smolicz

DATE:15 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 15 February 2016 at 9:02am

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 3 June 2015 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. On 22 January 2015 the applicant applied for approval of the position of Retail Manager (ANZSCO 142111 – Skill level 2).

3. 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).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.

5. 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 found that the tasks to be performed in the nominated position correspond did not correspond with that of Retail Manager (ANZSCO 142111) but with the lower skilled position of Retail Supervisor (ANZSCO 651511 Skill level 4).

6. On 28 January 2016 the Tribunal conducted a combined hearing with the related AAT file 1512421. Mr Harsh Makadia gave evidence on behalf of the applicant.  The Tribunal also took evidence from Mrs Jaswinder Kaur (the visa applicant).

7. The applicant was represented in relation to the review by its registered migration agent.

8. 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

9. 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.

10. Mr Makadia and his wife are directors of Aaran Group (WA) Pty Ltd. Since June 2011, Mr Makadia and his wife are beneficiaries of the Harkrish Family Trust which trades as Subway Town Hall.

11. Mr M Makadia is a qualified accountant and registered taxation agent employed by a Chartered Accountant practice in Western Australia. He also has a private accounting practice called Saffron Business Advisers.

12. In January 2012 Mr Makadia and his wife became part owners of three Subway stores located in Adelaide Tce, Como and South Perth. In July 2012 Mr Makadia and his wife commenced negotiations to purchase their own Subway franchise. In February 2013 they purchased a Subway Franchise at Subway Town Hall in Hay Street, Perth. Mr Makadia said that the store employs about ten staff and his wife was working as the manager of the store. Soon after purchasing the franchise his wife gave birth and was no longer able to manage the franchise and has now ceased involvement in the business.

13. Mr Makadia said that he is a part owner of three Subway franchises and spends the day working as an accountant. He has significant constraints on his time and is unable to dedicate more time to managing the Subway Town Hall store and commenced to look for a new employee to manage the store.

14. Mrs Kaur is a citizen of India. She first arrived in Australia in May 2008 as the holder of a sub class 573 student visa. Since arriving in Australia, she has completed a Certificate IV in Business, Diploma of Business, Diploma of Marketing and Advanced Diploma of Hospitality Management.  During her studies Mrs Kaur commenced working as a “Sandwich artist” at the Mitcham Subway in Victoria in September 2013 and was promoted to the position of Assistant Manager. Mrs Kaur commenced working at Subway Town Hall in November 2014 as a sandwich artist and was promoted to the position of Manager after another employee resigned in January 2015. After completing her studies, she commenced working as a full-time Manager.

15. The Department was provided with the following job description for the nominated occupation:

    Key Responsibilities:

    Responsible for every aspect of the day-to-day supervision of retail outlets, including sales, staff, stock and resources management.

    Duties:

    ·     Managing stock levels and making key decisions about stock control

    ·     Achieves financial objectives by preparing annual budget, scheduling expenditures, analysing variances, initiating corrective actions.

    ·     Completes store operational requirements by scheduling and assigning employees, following up on work results

    ·     Dealing with staffing issues such as interviewing potential staff, conducting appraisals and performance reviews, as well as providing or organising training and development

    ·     Responding to customer complaints and comments

    ·     Ensuring standards for quality, customer service and health and safety are met

    ·     Promoting the organisation locally by liaising with local schools, newspapers and the community in general

    ·     Formulating pricing policies for certain products by reviewing merchandise activities, determining the need for additional sales promotions, authorizing clearance sales

    ·     Ensure that shop fixtures are clean and maintained

    ·     Ensure products are well displayed for customers.

16. The Tribunal explained to Mr Makadia that the delegate found that the job description provided in support of the application was more closely aligned to the position of Retail Supervisor which was a lower skilled position than that of Retail Manager.

17. Mr Makadia said that Mrs Kaur has full responsibility for running the Town Hall franchise. She is responsible for hiring and training all staff, she has authority to deal with the Subway Field Consultants during monthly audit visits. In dealing with the Field Consultants Mrs Kaur is required to address issues relating to Occupational Health and Safety and store hygiene, food quality, staff performance, store appearance and performance. Mrs Kaur prepares and signs Weekly Inventory and Stock Reports (WISTR) which are given to the master franchisor. The reports track the gross sales and expenses which are used by the master franchisor to determine royalties and advertising fees paid by the business. Mrs Kaur has responsibilities for managing the store budget and has authority to discount products and monitor stock to avoid wastage.  Mr Makadia said that the four Subway franchises share inventory and If particular stock levels are low Mrs Kaur would negotiate with the other Subway stores owned by Mr Makadia and source items to meet demand. Mrs Kaur calculates all stock on hand at the end of each week in order to monitor sales and inventory. It was submitted that although the master franchisor is responsible for most of the advertising Mrs Kaur is able to prepare brochures for the local events such as Christmas brochures and special promotions for bulk purchase items. Mrs Kaur is responsible for managing all funds that come into the business and the preparation of a Storewide Cash Report and banks the takings twice a week.

18. In conclusion, it was submitted that both Mr Makadia and his wife are unable to spend time managing the store and the Retail Manager position is essential in order to build and improve sales and maintain the operation of the business in accordance to the franchise agreement.

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

19. 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.

20. The Tribunal finds that the application was lodged electronically using the e-lodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).

21. The Tribunal is satisfied that the application identifies the need for the nominator to employ a paid employee in the position of Retail Manager and that the position is under the nominator’s direct control. 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)

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

23. The Tribunal has had regard to the financial documents located on the Department’s file, which include: profit and loss statement, ASIC certificates of company registration and franchise agreements. According to the 2015 Profit and Loss Statement the annual sales exceeding $700,000 and a trading profit was over $475,337. Wages and Salary Expenses were over $200,000 in the 2015 financial year. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.

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

24. The Tribunal finds that the applicant is not involved in the provision of labour hire and consequently r.5.19(4)(c) is not relevant to the current nomination.

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

25. 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. 

26. The Tribunal has had regard to the Fast Food Industry Award 2012 and the signed employment contract. The Tribunal is satisfied that the nominee will be appointed for a period of a minimum of two years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period 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)

27. 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.

28. The Tribunal has had regard to the Fast Food Industry Award 2012 and Mrs Kaur’s employment contract and is satisfied that the terms and conditions of employment are not less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. Accordingly the requirements of r.5.19(4)(e) are met.

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

29. 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly the requirements of r.5.19(4)(f) are met.

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

30. 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 no evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia. Accordingly the requirements of r.5.19(4)(g) are met.

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

31. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision.

32. As stated above, the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to access the application against the criteria in r.5.19(4)(h)(ii) which requires that:

    ·     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 local resident, Australian citizen or permanent resident,

    ·     the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and

    ·     that a regional certifying body (RCB) has advised the Minister about certain matters relating to the position.

33. The main issues about which the hearing was focussed were in relation to whether :

    ·     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;

    ·     the position cannot be filled by a locally resident Australian citizen or permanent resident.

34. The Tribunal has had regard to the size and scope of the applicant’s business operations and the length of the visa applicant’s employment, her qualifications and is satisfied 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. The Tribunal is satisfied that the nominator’s business is located in regional Australia.

35. Turning to the requirement prescribed in r.5.19(4)(h)((ii)(D), this requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The position of Retail Manager nominated by the applicant is referred to in ANZSCO as a skill level 2 position. According to ANZSCO the Retail Managers “organise and control the operations of establishments which provide a retail service.”

36. The Tribunal is mindful that the tasks undertaken by the position are not required to specifically correspond to the tasks of an occupation specified in an instrument which is applicable for subparagraph (i) criterion r.5.19(4)(h). Nevertheless, for the purposes of r.5.19(4)(h)(ii)(D), the Tribunal must be satisfied that 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. The Tribunal notes the tasks outlined in the position description^.

37. The Tribunal has had regard to the ANZSCO descriptions for Retail Manager (General) (142111) and Retail Supervisor (621511) and compared the two. The Tribunal notes that the general description for retail managers is that they organise and control the operations of establishments, which provide retail services. In contrast, retail supervisors supervise and coordinate the activities of retail sales workers. The Tribunal notes that the retail store manager classification contemplates specialisations, including that of a fast food manager.

38. The Tribunal is also mindful that in the case of a franchise arrangement there is a level of control by the master franchisee as to matters such as advertising, training, product mix, and manner of operation. Consequently, it limits some of the decision making which may otherwise exist in a store that is not covered by a franchise agreement. The ultimate question is whether the position can be said to organise and control the operations of the business or whether the position simply supervises and coordinates the activities of the retail sales workers within the business. Those statements about the broad nature of the positions are contained in the respective ANZSCO definitions.

39. Having regard to the evidence detailed above the Tribunal is satisfied that the nominated position has responsibility for organising and controlling the retail operations of the Subway Town Hall franchise.  The Tribunal accepts that the position involves a level of responsibility and is an important role in the applicant’s business at a skill level that is greater than that of Retail Supervisor (Skill level 4).

40. Whilst there is not necessarily an exact match of tasks, for the purposes of r.5.19(4)(h)(ii)(D), having considered Mr Makadia’s evidence detailed above, the Tribunal is satisfied that the tasks to be performed in the nominated position correspond to the tasks of the occupation of Retail Manager (General) at ANZSCO (Skill level 2).

41. The Tribunal has had regard to Form 1404 dated 11 March 2015 which was issued by a RCB located on the Department’s file and is satisfied that Skilled Migration WA has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.

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

43. 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

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

    Christopher Smolicz
    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).