4Eagles Pty Ltd (Migration)

[2021] AATA 1672

4Eagles Pty Ltd (Migration) [2021] AATA 1672 (1 April 2021)

DIVISION:Migration & Refugee Division

APPLICANT:  4Eagles Pty Ltd

CASE NUMBER:  1806089

HOME AFFAIRS REFERENCE(S):          BCC2017/3135583

MEMBER:Andrew McLean Williams

DATE:1 April 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 01 April 2021 at 4:07pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager – tasks and duties of nominated position – operates seven (7) Cignall Outlets – managerial discretion subsumed by requirements of a franchise agreement – decisions about product mix, stock levels, merchandising display and marketing campaigns – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review commenced by 4 Eagles Pty Ltd (‘the review applicant’) of a decision made by a delegate of the Minister for Home Affairs on 16 February 2018 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 review applicant applied for approval on 30 August 2017. 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 stream (r.5.19(3)); and a ‘Direct Entry’ nomination stream (r.5.19(4)). 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 review applicant has applied for approval of a nomination, seeking to satisfy the criteria in the ‘Direct Entry’ nomination stream.

4. The review applicant operates a Cignall tobacco franchise at Nambour, and had applied for approval of a nominated position of Retail Manager on behalf of the visa applicant, Mr Sahlesh Kumar Pinjani.

5. The delegate refused the application on the basis the review applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations, because the delegate was not satisfied that the tasks in the nominated position (Retail Manager, ANZSCO 142111) correspond with those actually performed by Mr Pinjani. Because the review applicant’s business is conducted under a franchise agreement, the delegate took the view that much of the managerial discretion that might otherwise be expected to be exercised by a Retail Manager had been subsumed by the requirements of a franchise agreement, which specifies that it is the Franchisor rather than the franchisee or its delegate who is responsible for determining which products are sold, and other related retail decisions. In light of that, the delegate did not feel that the nominated position was consistent with the job requirements of a Retail Manager and was more consistent with those of a lesser role, as might be performed by a Retail Supervisor.

6. The applicant, represented in this instance by one of its Directors, Mr Rahool Kumar Rohra, appeared before the Tribunal by means of telephone on 22 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and nominee Mr Sahlesh Kumar Pinjani.  

7. The applicant was represented in relation to the review by its registered migration agent Ms Vanessa De Pretis (MARN 0641294) of Migration Solutions Pty Ltd. The representative also attended the Tribunal hearing, by telephone.  Detailed written submissions dated 17 August 2020 were also received by the Tribunal.

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.

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

10. Regulation 5.19(4)(a) requires that the application for approval be in the approved form, 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 an identified person as a paid employee to work in the nominated position, under their direct control.

11. In this instance the application was made on-line, by means of the approved form.  That form contains the required declaration for purposes of s.245AR(1), and identifies a need for the review applicant to employ an identified person as a paid employee to work in the nominated position under the review applicant’s direct control.  The automatically generated acknowledgement letter from the department recording receipt of the application then also acknowledges that the application was accompanied by the prescribed fee.

12. Accordingly, the requirements in r.5.19(4)(a) are met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

13. Regulation 5.19(4)(b) requires that the applicant be actively, lawfully and directly operating a business in Australia.  Here, the review applicant operates an active and lawful business in Australia in the form of seven ‘Cignall’ Retail Tobacco outlets.  Recent business records and taxation lodgements confirm the nature and currency of the review applicant’s business enterprise in Australia.  

14. Accordingly, the requirements in r.5.19(4)(b) are met.

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

15. 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.  In this instance the review applicant’s business does not include activities relating to the hiring of labour to other unrelated businesses.

16. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

17. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and for the terms and conditions of that employment to not expressly exclude the possibility of an extension beyond two years. 

18. Mr Pinjani is employed full-time.  A copy of his employment contract has been cited before the Tribunal, and it does not contain any express prohibition on his continued employment, beyond two years.  Financial records submitted before the Tribunal are sufficient to suggest that the review applicant has the capacity to continue to employ Mr Pinjani on an on-going basis.

19. Accordingly, the requirements in r.5.19(4)(d) are met.

    No less favourable terms and conditions of employment: r.5.19(4)(e)

20. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position 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.

21. Mr Pinjani is paid a base salary of $87,000 per annum together with superannuation and standard employee entitlements to sick leave, recreational leave, etc.  CCIQ as a Regional Certifying Body did certify on 1 August 2017 that the terms and conditions of Mr Pinjani’s employment are no less favourable than would be those for an Australian citizen or Australian permanent resident employed in the same workplace and at the same location.  The Tribunal is satisfied that this is the case.

22. Accordingly the requirements of r.5.19(4)(e) are met.

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

23. Regulation 5.19(4)(f) requires that there be 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. 

24. No information has been drawn to the attention of the Tribunal by the department suggesting that there is any adverse information known about either the review applicant, or any person associated with the review applicant.

25. Accordingly the requirements of r.5.19(4)(f) are met.

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

26. 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.

27. No information has been drawn to the attention of the Tribunal suggesting that the review applicant has other than 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

28. Accordingly the requirements of r.5.19(4)(g) are met.

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

29. 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 either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

30. In this case the nominated position is one that is located in Nambour, which qualifies as part of regional Australia.  The delegate was not satisfied that the review applicant’s nominated position met the requirements of sub-regulation 5.19(4)(h)((ii)(D), specifically because the delegate was not satisfied that the nominated position was commensurate with the actual role performed by Mr Pinjani, on the basis that the delegate felt that his role entailed less managerial discretion - in terms of selecting product mix (etc) - than is to be expected in the case of Retail Managers (ANZSCO 142111).

31. The Tribunal heard oral evidence from each of Mr Pinjani and from Mr Rohra, who is one of the directors of the review applicant. Mr Rohra explained that 4Eagles Pty Ltd operates seven (7) Cignall Outlets spread across South East Queensland, such that it is not possible at a practical level for the Directors to oversee the day-to-day operations of the store in Nambour. The Tribunal accepts therefore that this establishes a genuine need for the nominator to employ the person identified under r.5.19(4)(a)(ii) as a paid employee, to work in the position under the nominator’s direct control.

32. The oral evidence from Mr Rohra, as well as the written submissions and supporting evidence submitted to the Tribunal by the review applicant prior to the hearing explain that efforts were made to recruit a local person to fulfill the position now being filled by Mr Pinjani, yet those efforts did not produce a suitably qualified or experienced candidate.  The Tribunal accepts therefore that the position is one that could not be filled by an Australian citizen or permanent resident who is living in the same local area.

33. Further, the evidence from Mr Rohra was to the effect that the Franchise agreement with Cignall does not control the range of products or product mix that individual franchisee’s may stock in their stores.  Over 90% of sales by volume are tobacco, yet tobacco only represents approximately 10% of profit.  Meanwhile 10% of sales by volume are giftware items, yet these represent approximately 50% of profitability.  In this sense giftware items are more important to commercial profitability than are tobacco sales, and each store manager must be attuned to local trends in giftware sales.  Individual stores have complete discretion to select which giftware items they will stock, and as to how these will be marketed locally.  Similarly there is also considerable latitude in terms of individual franchisees determining the mix of tobacco products that they will stock.  Mr Rohra then explained that each of the 7 outlets operated by 4Eagles Pty Ltd are different, in terms of their local clientele demographics, such that decisions about product mix, stock levels, merchandising display and marketing campaigns are matters that are left to the local retail manager to determine, based on their understanding and intuition regarding their own local market.  Having heard this evidence, and having now examined and considered Mr Pinjani’s position description against the list of tasks set out for Retail Managers under ANZSCO 142111, the Tribunal is satisfied that the tasks to be performed in the position do sufficiently correspond to the tasks of a retail manager and Mr Pinjani does exercise the level of managerial discretion and authority to satisfy the ANZSCO 142111 requirements.

34. On 1 August 2017 the Chamber of Commerce and Industry Queensland (CCIQ) as a Regional Certifying Body located in the same State or Territory as the position issued a certificate advising the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).

35. Accordingly the Tribunal is satisfied that the requirements of r.5.19(4)(h) are met.

36. 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

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

    Andrew McLean Williams
    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

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; 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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (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 the person identified under subparagraph (a)(ii), as 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 specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (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).