A&G DHALIWAL PTY LTD (Migration)

[2019] AATA 3565

A&G DHALIWAL PTY LTD (Migration) [2019] AATA 3565 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  A&G DHALIWAL PTY LTD

CASE NUMBER:  1803341

DIBP REFERENCE(S):  BCC2017/3983786

MEMBER:Peter Emmerton

DATE:24 June 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 24 June 2019 at 3:14pm

CATCHWORDS

MIGRATION – Nomination – Direct Entry Nomination stream – genuine position – specialised area – business growth – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), r 5.19

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 5 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 applicant applied for approval on 27 October 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 (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 the 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) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument and therefore do not correspond to the tasks of an occupation specified by the Minister

5. The applicant was represented in relation to the review by its’ their registered migration agent.

6. 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

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), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

8. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

10. The nominating entity runs a mid-size retail business consisting of a Bakers Delight Bakery in Whyalla, a northern regional city of South Australia. The Tribunal notes that the city is currently in the process of receiving substantial investment in its’ principal business, the local steelworks with an expected major positive economic impact. The Tribunal notes that Whyalla is the 3^rd largest city in South Australia.

11. The visa applicant’s substantial responsibilities, experience and attributes, clearly align with the duties associated with a Retail Manager (General), ANZSCO 142111.

12. The owner of the business has additional business interests and does not work on a day to day basis in the business.

13. The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in specialist cuisine, moderately sized retail businesses with limited opportunities for advancement.

14. The Tribunal received from the nominator, substantial evidence of the salary determination, recruitment processes and associated advertising in support of their recruitment for the position and the subsequent wage determination. The Tribunal also notes the provision of a 2 year contract with the provision for extension. The nominated salary is $54,000 plus 9.5% Superannuation, which appears to be in the mid-point of similar role’s remuneration levels.

15. The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a large number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position in this relatively remote and small regional city in a northern South Australian location.

16. The Tribunal notes that a ‘Satisfied’ RCB Certificate has been issued by the relevant certifying body. The date of the certificate is 27 September 2018.

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

17. 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.

18. The Tribunal finds that the application was lodged electronically using the elodgement 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).

19. The Tribunal notes from the current Organisation Chart that the retail business is operating on a modest staffing ratio of 3 direct reports employed on a casual / part-time basis reporting to the (nominee) with 3 other staff reporting to the Head Baker. This is in part due to the extended working hours associated with the 7 day per week operating schedule totalling approximately 80 hours. The tribunal observes that the operating hours are determined by the business. The extended hours of operation and the number of employees would, in the experience of the Tribunal strongly suggest the need for a full-time Retail Manager.

20. The Tribunal notes that the owner has other business activities. It would appear logical that regardless of the utilisation of technology, the owner is unable to undertake the daily duties of a General Manager. Nor is it likely that the operation could successfully sustain itself in regards to service delivery or meet its’ legal responsibilities in regards to OH & S and general HR matters without a relatively autonomous, locally employed Retail Manager.

21. The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Retail Manager (General), under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1) 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 was provided with a range of Business Tax Returns, BAS documents and Profit and Loss Statements, including those produced for FY 2017 and FY 2018, all of which correlated. ASIC Registration details were provided, the Tribunal checked the status of the listed ABN and perused the company web site. 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. 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. The Tribunal finds that 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 notes that the business appears to be in a healthy state and has growing revenues and profit, upon which tax was paid in FY 2018. The Tribunal notes a growth in revenue from FY 2017 to FY 2018 in excess of 50%. The financial stability of the nominating entity further attests to its’ ability to employ the visa applicant. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period.

27. The Tribunal has had regard to the Employment Agreement and position description. It is satisfied that the nominee will be appointed for a period of at least 2 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.

28. Tribunal observes that that one of the challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services. It notes that the workforce is highly mobile and the specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. This may become a more pressing issue as Whyalla’s economy revitalises as expected and the potential for competing businesses subsequently increases.

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

29. 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.

30. The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s annual salary of $54,000 plus Superannuation as appropriate and is reflective of experience relevant to the nominated position. The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace, as in this instance, where no other employees occupy a similar position. Accordingly the requirements of r.5.19(4)(e) are met.

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

31. 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)

32. 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. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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)

33. Regulation 5.19(4)(h) contains 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 assess the application against the criteria in r.5.19(4)(h)(ii) which require that:

    ·the position and nominator’s business are 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 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

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

34. The Tribunal has had regard to the size and scope of the nominating entity’s business operations and the extended staffing hours required due to the operating hours of the business.

35. The Tribunal 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, as discussed in paragraphs 19-21 inclusive.

36. Evidence was presented regarding the recruitment process. This included advertisements in media, analysis of the 17 applications and resulting10 short-listed candidates and the subsequent selection of a suitable candidate for the visa applicant’s role, following interviews of the potentially suitable candidates. The Tribunal acknowledges that a range of Retail Management roles are readily available and that the demands, isolated regional location and hours of this role, may not have proven overly attractive to some candidates.

37. The Tribunal observes that a substantially more comprehensive evidence base was provided to it, than was presented to the delegate at the time of their decision. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.

38. Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Nor 5.19(4)(h)(i) of the Regulations because the nominated tasks do not subsequently correspond to the tasks of an occupation specified by the Minister.

39. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 142111 for Retail Manager (General) and the stated duties of the visa applicant. Once again, it notes that the business owner appears to occupy the role of Director rather than on the floor management and additionally the substantial opening hours of the business. This clearly indicates the need for a Retail Manager to operate and manage the business throughout the extensive customer service hours, particularly as the Director is engaged in additional business entities. This would by necessity most likely lead to a considerable degree of autonomy being associated with the role, as is reasonably expected of a Retail Manager in an ANZSCO level 2 designation.

40. Whilst the visa applicant, would most likely report performance in all KPI areas and seek input from the Director of the business, this coincides with the Tribunal’s expectations of a Retail Manager (General) directly reporting to Director of a business.

41. The Tribunal notes that the delegate held the view that a franchise operation would not require the role in question and that it is more in-line with a supervisory level 4 position. The Tribunal does not agree. Whilst franchised businesses offer a better than average chance of success, they still rely entirely upon local management expertise to manage and put into action the myriad of tasks which must be successfully executed if a retail business is to prosper. It acknowledges that the scaffolded business processes provide by a franchisor are of assistance but failed execution is highly likely to lead to a failed business. The current rate being 50% of all small businesses fail in their first 5 years of operation.

42. The Tribunal acknowledges this is a moderately sized operation, It is in no doubt that the visa applicant requires a degree of flexibility performing the many and varied work duties. The Tribunal has also concluded that a Retail Manager is required to oversee the retail business and does operate largely in-line with the ANZSCO specifications in order to meet logistic and work health and safety requirements whilst satisfying customer service and product quality expectations. All of which are critical in a competitive market place in a regional city.

43. The position of Retail Manager (General), ANZSCO 142111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.

44. The Tribunal is satisfied that the applicant meets 5.19(4)(h)(i) and 5.19(4)(h)(ii).

45. The Tribunal has had regard to Form 1404 issued by an RCB (Department of State Development), dated 27 September 2018 and is satisfied that the applicant 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. It also notes that this RCB was not provided to the delegate at the time of their decision.

46. 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

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

    Peter Emmerton
    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).