1510563 (Migration)

[2016] AATA 3417

1510563 (Migration) [2016] AATA 3417 (4 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Fun Bite Pty Ltd

CASE NUMBER:  1510563

DIBP REFERENCE(S):  BCC2015/223244

MEMBER:Christopher Smolicz

DATE:4 March 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 04 March 2016 at 9:17am

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 17 July 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. The applicant applied for approval on 21 January 2015. 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).

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

4. 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.

5. Mr Dhiren Shah gave evidence at a hearing before the Tribunal held on 2 March 2016. The applicant was represented in relation to the review by its registered migration agent.

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 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). For the nomination to be approved, all the requirements must be met.

8. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision. The issue relevant to the current matter is whether there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

9. Mr Dhiren Shah and Mr Anand Pandat are directors of Fun Bite Pty Ltd which trades as Dominos Malvern. Mr Shah is also a director of Gawler Pizza Pty Ltd (Dominos Gawler).

10. Mr Shah purchased the Dominos Malvern franchise in 2012. The company employs three casual Shift Managers and eight to nine drivers. In the financial year ending 30 June 2014 the business declared a turnover of $911,399. The Tribunal has had regard to the profit and loss statement, current Business Activity Statements (BAS) and business bank account statements and is satisfied the business is actively and lawfully operating in Australia.

11. The Tribunal questioned Mr Shah about his duties in the business. Mr Shah said that he has overall control over Dominos Malvern and deals with the Master Franchisor. He sets the marketing plans, analyses sales reports, sets profit targets, is responsible for payroll, advertising and briefs an external accountant to prepare and lodge BAS and Income Tax Returns.

12. Mr Shah said that most of the digital advertising is arranged through the master franchisor and he makes decisions relating to local advertising strategies which make up about 3 per cent of their advertising market. He co-ordinates the ordering of supplies and sets staff rosters two weeks in advance. He deals with and resolves customer complaints.

13. The Tribunal questioned Mr Shah about why there is a need for a Retail Manager. Mr Shah said that it is difficult to retain a full time Retail Manager in the business and most Retail Managers he has employed only stay for about one to two years. He needs a Store Manager to manage stock, set rosters, hire and train staff, grow sales and take responsibility for meeting targets. He wants to sponsor a permanent employee who will commit to the position for the long term. Mr Shah said that he advertised for the position on line and was unable to find suitable Australian citizens or permanent residents for the position. He subsequently interviewed Mr Panchal over the telephone from NSW and found him to be the most suitable applicant. A employment agreement between Mr Panchal and the applicant dated 25 November 2014 was provided by the applicant in support of the application.

14. The Tribunal asked Mr Shah to explain what made Mr Panchal suitable for the position. Mr Shah said that the visa applicant was smart and hardworking. The Tribunal asked Mr Shah to explain Mr Panchal’s past work history. Mr Shah said that Mr Panchal arrived in Australia on a student visa, is subject to work restrictions and is working in NSW in the area of Aged Care catering but could not provide any further information.

15. Mr Shah said that he now lives in Mulgrave, Victoria. The Tribunal questioned he applicant about why the family moved to Victoria. Mr Shah said he has a four-year-old child who suffered from colds and respiratory problems from birth because of the cold weather in Adelaide. He said that he was told by his general practitioner that it would be beneficial for the child to live in Queensland, NSW or Victoria. The Tribunal told Mr Shah that it found his evidence unusual given that Victoria had a cooler climate than South Australia. Mr Shah said that his wife has also obtained employment in Victoria.

16. Mr Shah said he regularly commutes to Adelaide to manage the business and deal with the accounts and the Master Franchisor. Mr Shah said that he does not spend all his time in the store and Mr Pandat manages the store and takes care of the business when he is away.

    Genuine need for the position r.5.19(4)(h)

17. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision. 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). The Tribunal finds that the issue in this particular matter is whether 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.

18. The Tribunal has had regard to the ANZSCO descriptions for Retail Manager (General) (142111).  The ANZSCO job description refers to an indicative skill level of 2 for such positions and refers to the positions as organising and controlling the operations of establishments which provide retail services.  The Tribunal also considered the ANZSCO job description for a Retail Supervisor (ANZSCO 621511) for which ANZSCO shows a skill level of 4 and describes the overall activities of such a position as to “supervise and coordinate the activities of retail sales workers”. 

19. The Tribunal notes Mr Shah’s evidence that his family has relocated to Victoria. The Tribunal notes however that Mr Shah regularly travels to Adelaide and is still actively involved in organising and controlling of the operations of the Dominos Malvern store.  The Tribunal also notes Mr Shah’s evidence that his managerial duties do not require him to be present in the store on a daily basis.

20. The Tribunal finds that Mr Pandat is a director and 49 per cent shareholder in the business. The Tribunal finds that Mr Pandat is also actively involved in managing the Dominos Malvern store and continues to organise and control the operations of the Dominos Malvern store while Mr Shah is away.

21. The Tribunal also found Mr Shah’s evidence that he could not recruit a local Australian citizen or permanent resident vague and inconsistent. For example, when asked to elaborate on why Mr Panchal was the most suitable applicant for the position Mr Shah was only able to state that Mr Panchal was “smart and hardworking”. When asked to elaborate about Mr Panchal’s work experience he was only able to state that he thought that Mr Panchal worked in Aged Care catering. When questioned further he could not provide any further information. The Tribunal found this aspect of Mr Shah’s evidence inconsistent and lacking in credibility. The Tribunal notes that the Mr Panchal resides in NSW, has never previously worked in the applicant’s business and there is no evidence that he has previous experience working in a Dominos franchise. The Tribunal notes that despite entering into an employment agreement in November 2014 Mr Panchal has not commenced working for the applicant.

22. Having considered all the evidence, the Tribunal is not satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position of Retail Manager.

23. Accordingly, the requirements of r.5.19(4)(h) are not met.

24. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

25. The Tribunal affirms the decision under review to refuse 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).