1509308 (Migration)

[2016] AATA 3836

1509308 (Migration) [2016] AATA 3836 (3 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rohitkumar Vallabhbhai Talaviya
Mrs Kajal Rohitkumar Talaviya

CASE NUMBER:  1509308

DIBP REFERENCE(S):  BCC2015/1102844

MEMBER:Marten Kennedy

DATE:3 May 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).  The visa applicants applied for the visa on 13 April 2015.

2. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The sponsor is Hanbrook Holdings Pty Ltd, which operates the Brighton Road Food Market in Scarborough WA.  The visa applicant has been nominated to perform the occupation of Retail Buyer (ANZSCO 639211).

5. The Department approved the corresponding nomination for the occupation on 29 October 2014. The Department however subsequently refused to grant the visa to the applicant because the delegate considering the visa application was not satisfied the position associated with the nominated occupation was genuine and thus the applicant did not satisfy cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations. While there is inconsistency in the approach of the Department in this regard, the issue for me to decide is whether I am satisfied that the position associated with the nominated occupation is genuine.

   CONSIDERATION

6. In concluding that the position associated with the nominated occupation was not genuine, the delegate identified the following matters as the basis for her concerns:

   ·The delegate suggests that Retail Buyers are usually employed by large department stores or chains to purchase goods on a large scale;

   ·The organisation chart presented showed the applicant was to work at a single retail location;

   ·The organisation chart did not disclose who was responsible for the overall management of the store, and the positions of ‘Retail Manager’ and ‘Retail Supervisor’ are not occupations that may be approved; and

   ·Having regard to the size  of the sponsoring employer, any Retail Buying functions would be undertaken by the store manager, and there is no evidence of separation between the role of Retail buyer and store manager

7. In advance of the hearing, I asked the applicant to produce documentary evidence addressing the size, scope and structure of the business.  I have had regard to the documentary evidence produced in response to my invitation.

8. I have had regard to Appendix C of the submissions provided to the Tribunal on 19 January 2016.  It tends to reflect the delegate’s concerns, revealing only one location, and owner and three positions between the owner and the checkout and related assistants.  One of these is said to be a position for a ‘Retail Buyer’.  The others are Assistant Store manager and Sales and Marketing Manager.

9. The financial reports of the company disclose it to be of reasonable size, with sales in excess of $7 million, and costs of goods sold of approximately $5.5 million.  BAS provides demonstrate that the business continues on the trajectory demonstrated by the financial statements.

10. I have also had regard to the ANZSCO in respect of Retail Buyers.  The occupation is described in ANZSCO in conjunction with the occupation of ‘Wool Buyer’  According to ANZSCO:

    Retail Buyers… select and buy goods for resale in retail establishments.  Retail Buyers in Australia will generally have an AQF Certificate III including at least two years of on-the-job training, or an AQF Certificate IV.

11. The tasks identified in ANZSCO are:

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

    ·negotiating purchase, promotion and supply arrangements with suppliers

    ·designing and implementing pricing, marketing, promotional and display strategies

    ·liaising with management on long-term planning and sales promotions

    ·establishing working plans according to seasonal and budgetary requirements

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

    and, albeit unhelpfully, in respect of the occupation of Retail Buyer specifically, the ANZSCO explains a Retail Buyer ‘Selects and buys goods for resale in a retail establishment’.

12. In the hearing, I asked the applicant to elaborate on the nature of the business.  The applicant confirmed the business was a supermarket, with a deli, meat and fresh produce department.  He described the store as a very busy store.  He described it as a general supermarket stocking gourmet and organic produce.

13. In response to my questions, the applicant explained that the supermarket is independent, with limited commitment to purchase items from Metcash (a major supermarket wholesaler).  Most stock is sourced independently from the Perth produce markets or particular suppliers.

14. Although I emphasised I was focused on whether the position was genuine, in the sense of whether the position was genuinely that of a designated Retail Buyer, I explored the applicant’s qualification to undertake such an occupation.  The applicant said he had qualifications in marketing and business, but as I understood his evidence, he had learned on the job.

15. Noting the other positions at the management level in the structure chart of the business, I asked what the owner, assistant manager and sales and marketing manager did.  The applicant said the owner attends to office work and payments, the assistant store manager looks after the shop and the sales and marketing manager attends to matters such as social media.

16. I asked the applicant to take me through a typical day of his duties.  The applicant described going to the Perth produce markets in the morning, collecting stock and delivering it to the store.  He said in the afternoon he will arrange things and double check stock.

17. Noting the concerns of the delegate as to why the owner would not perform the buying functions for the business, the applicant said the Manager is too busy to go to the market or the wholesaler.  Other management staff are too busy to leave the store.

18. I wished to take evidence from the owner of the business as to his perceptions of the duties of the applicant and needs of the business.  The ‘Response to Hearing Invitation’ identified the owner (Mr Hondros) as the only witness other than the applicant.

19. At the hearing, I was informed however that Mr Hondros was not available, but I could speak to Mr Hardwick, who was the General Manager of the business.  I indicated I was not inclined to speak with Mr Hardwick because the structure chart of the business provided in response to my request did not identify a General Manager position, and did not mention Mr Hardwick.

20. I adjourned the proceedings and arranged for the Registry to attempt to make contact with Mr Hondros.  I am informed that the number provided for Mr Hondros was answered by Mr Hardwick.  Mr Hardwick provided a further contact number for Mr Hondros.  When contacted, Mr Hondros explained he was dealing with personal matters and directed enquiries to Mr Hardwick.  Mr Hondros was not aware of the hearing. 

21. I directed that Mr Hardwick be contacted from the hearing room in order to give evidence.  However, when contacted again Mr Hardwick informed the registry officer he did not wish to participate in the hearing.

22. When I raised these matters on resumption, the applicant’s agent observed that Mr Hardwick was on holidays and not currently available.  I asked if there was a request for an adjournment to enable me to hear from Mr Hardwick.  There was no such request.

    Am I satisfied that the position associated with the nominated occupation is genuine?

23. As I explained to the applicant at the commencement of the hearing, on first examination of the delegate’s reasons, I shared the concerns as to the size and scope of the business and its management structure as to whether the business required a Retail Buyer as a designated position.

24. I accept that the business has a significant turnover, but note also that the workforce as demonstrated in the structure chart of the organisation has four management positions.  I have some concerns as to the reliability of that evidence as I learned in the course of the hearing that a person is now termed the ‘General Manager’ of the business, yet was not mentioned in the structure chart.

25. I am not satisfied with the evidence before me as to the various tasks undertaken for the business by the various positions set out in the structure chart.  It remains of significant concern that the business does not appear to be of sufficient size and scope to warrant a designated Retail Buyer, in addition to an owner, an assistant manager, a marketing manager and possibly also a General Manager.  While I do not agree with a proposition that Retail Buyers will only be found in large Department or chain stores, I do not accept that every retail business will have a genuine position available for a Retail Buyer in the sense the occupation is described in ANZSCO.  In the case of this business, I am not satisfied that the business genuinely needs a designated position for a Retail Buyer in addition to the other management positions.

26. I accept that the nature of the business requires a degree of activity that might be associated with a Retail Buyer, but I am unable to accept that it genuinely justifies a designated position in the business. The evidence of the applicant did not convince me that a position of Retail Buyer was genuinely required, as opposed to a supermarket manager position, or a position requiring the collection of produce for sale.

27. Unfortunately, no witness from the business other than the applicant was available to address my concerns in this regard at the hearing.  My primary concern as to the genuineness of the position of Retail Buyer in this business relates to the tasks and duties of others holding a management role at the business.  This could not be addressed further.

28. As a consequence, and in light of the concerns I have mentioned above in these reasons, I am not satisfied that the position associated with the nominated occupation is genuine.  More specifically, I am not satisfied that the position occupied by the applicant is genuinely that of a Retail Buyer in the sense described by ANZSCO.

29. It follows that the applicant does not meet the requirements at cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations. The requirements of cl.457.223(4) are cumulative, and therefore the applicant does not meet c.457.223(4).

30. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

31. The second-named visa applicant relies on her status as a member of the family unit of the first-named visa applicant.   The visa must also be refused to the second-named applicant as she cannot meet the secondary criteria for the grant of the visa in circumstances where the visa is refused to the first-named applicant.

    DECISION

    The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Marten Kennedy
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    …

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

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

    …