Abeysundara Dissanayake (Migration)

[2023] AATA 2209

Abeysundara Dissanayake (Migration) [2023] AATA 2209 (10 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Anshani Gnanaki Abeysundara Dissanayake
Mr Rangana Ashan Bandara Parussella Herath Mudiyanselage

REPRESENTATIVE:  Mrs Claudia Zych (MARN: 1799220)

CASE NUMBER:  1934276

HOME AFFAIRS REFERENCE(S):          BCC2017/4915808

MEMBER:Stephen Witts

DATE:10 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant and the second named applicant met the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233 of Schedule 2 to the Regulations; and

·cl 187.223 of Schedule 2 to the Regulations.

Statement made on 10 July 2023 at 3:06pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – retail manager – subject of approved position nomination – related nomination application refused – genuine management position – supermarket and petrol station – longer trading hours and public holidays – applicant’s education, experience and work in position – wide managerial responsibility – owner’s family responsibilities and other business activities – previous agent included incorrect information – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.223, 187.233

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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 December 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of retail manager ANZSCO code 1421111.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 Of Schedule 2 to the Regulations because of the delegate was not satisfied that the applicants were the subject of an approved nomination.

6. The applicants appeared before the Tribunal on 4 July 2023 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, Mr Pratti Guptha Pty Ltd.

8. The applicants were represented in relation to the review.

9. For the following reasons, the Tribunal has concluded that the matter should be revisited for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicants are the subject of an approved nomination.

    Nomination of a position

11. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

12. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

14. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision by the nominator where it was contended that the nominator had not provided sufficient evidence that there was a genuine need for the nominator to employ the applicant/nominee as a paid employee to work in the above position under their direct control.

15. In particular it was asserted by the delegate that the business entity is a sole trader and that it was stated that the nominated position of retail store manager reports to a Board of Directors and that the delegate did not accept that such a board existed, and that as the sole trader was personally responsible for all aspects of running a business the delegate found that it was not plausible that the owner of a small business would relinquish control of pricing, budgeting, purchasing, marketing policies, and recruitment to another employee. According to the delegate it was most likely that the nominee will be performing duties unrelated to that of a retail manager such as supervising and maintaining motel facilities and that the business is a United petrol station and that the material provided is a position description applied to that of a Shell petrol station.

16. It was also asserted by the delegate that it was stated that the business employed the nominee as a store manager as well as four customer service officers (two full-time and two part-time) and two kitchen staff. The delegate asserted that the nominee position according to the evidence provided earned a salary that was lower than the customer service staff who reported to him and that this suggested that the nominated position was actually performing lower-level duties.

17. According to the delegate there was no evidence provided despite an assertion made that the business may be expanding therefore needing a second layer of management and that there is no evidence that the business owner is not actively involved in managing and operating the business.

18. It was also stated by the delegate that the nominator stated in their support letter dated 16 December 2017 that they did advertise the position in 2017 on Seek but did not receive a suitable candidate but that no evidence was provided regarding what candidates applied or why they were not suitable, and it was also noted that the nomination application was lodged on 21 December 2017 indicating that the recruitment period was only five days.

19. Based on the above the delegate stated that it made a decision that while the business owner may require some assistance to run the day-to-day operations of the business that the nominated position is not a genuine retail management position.

20. The Tribunal notes that it has been provided with evidence from the applicant prior to the hearing including some business and financial information, pay slips, employment contract material, advertising material, an organisation chart, a position description, and other material on 14 July 2022, and that further material was provided on 22 December 2022 and on 27 April 2023.

21. The Tribunal notes that a submission was provided by the applicant’s representative stating that the nominating business is owned by Mr Ganesh Pratti Guptha trading as United IGA Broome, that there is a genuine need to employ the nominee under the nominator’s direct control and that the tasks performed do correspond to that of a retail manager as defined by ANZSCO code 1421111.

22. It was also stated that the business is owned by Mr Pratti Guptha as a sole trader and that it is an Australian branch of an international independent grocers Association and is one of Australia’s leading supermarket groups, and that as a supermarket retailer it also serves fresh hot food and everyday essentials including fishing equipment and other such services.

23. It was stated that the nominee/applicant arrived in Australia in November 2013 from Sri Lanka, on a student visa to study commerce at master’s level. It was stated that before arriving in Australia she worked in the role of a training manager and after arriving here and commencing her education she began work as a part-time customer service assistant and that following her graduation she moved from Melbourne to Broome and has worked since August 2017 as a customer service assistant until December 2017 where she has worked in the capacity of a retail store manager.

24. It was stated that she successfully studied at bachelor level in 2010 in United Kingdom and did complete her commerce degree at master’s level in Australia.

25. It was stated that she gained valuable retail experience working as a part-time customer service assistant for 3 ½ years while working for IGA in Melbourne and that therefore she was an ideal candidate for a management position with the group in Broome.

26. It was stated that the position of store manager was advertised by the nominating business in December 2017, June 2018, October 2020, and February 2022 and that the most suitable candidate for the position was the nominee.

27. It was also stated that the government of Western Australia provided advice via its RCB in October 2018 stating in its opinion that the application did satisfy the requirement that the nominated position could not be filled by an Australian citizen who is living in the same local area.

28. It was also stated that the nominee continues to be employed by the nominating business, that she is working 30 hours per week, and that she is earning an income of $72,600 per annum plus a car allowance, and that her husband is also working full-time in the same business in the role of customer service officer.

29. In regards to the position it was stated that the owner of the business was responsible initially for the day-to-day management and operations of the store but that following having a child in 2017 he decided to divide his attention more towards the family and other business related activities and that he is still responsible for the overall business but is not obligated to take part in the day-to-day operations and management of the store and that that is the responsibility of the nominee.

30. It was stated that unlike other supermarkets this business trades every day including public holidays and longer trading hours do support the need for additional staff or rotation of staff rostering and that the organisation chart demonstrates that the store manager oversees a customer service team and the kitchen staff, cleaners and stock fillers and the store also serves freshly made sandwiches and other hot food items and that the kitchen by itself makes over $1000 every day contributing to the profit the business.

31. It was stated that in the 2021-2022 financial year sales from the kitchen itself were over $400,000 and this is only one section of the business. It was also stated that it was acknowledged that the delegate validly raised concerns that the nominee may be performing duties deemed unrelated to that of a retail manager by virtue of the original reference to Shell and maintaining motel facilities. It was stated that the previous migration agent assisting with the application had included incorrect information and that this may have caused problems with the application.

32. It was further stated that since 2017 the need for a permanent full-time genuine store manager has strengthened in that in the current organisation chart Mr Pratti still holds the position of business owner and sole trader and that the nominee is the store manager in charge and that currently the business employs two full-time customer service officers, two part-time customer service officers, one full-time fruit and vegetable officer, two part-time kitchen staff, and two part-time cleaning and stock filling staff. It was stated that the business now employs an additional two staff.

33. It was stated that the nominee is well versed in the business’s product range, dealing with suppliers, inventory control and maintaining financial records, and that the applicant visits the store every few days to meet with the nominee and that the financial statements further support the success of the store. According to the financial information provided retail sales amounted to $2.4 million in 2017 and that in 2021 it amounted to $5.4 million, demonstrating a sales increase of approximately $2.9 million or 120%.

34. It was also stated that the business is also a petrol station in association with the supermarket and that the applicant has an agreement with United and IGA to provide services.

35. The Tribunal also notes the material provided regarding advertising for the position where it was stated that in 2017 9 applications were received, that 11 applications were received in June 2018 and in October 2021 1 application was received. It was stated that there were no applications received in February 2022. The Tribunal also notes that the candidates for these advertisements were listed by the applicant and the outcome of the interviews were detailed. It was stated that of all these applications the nominee was the best candidate.

36. The Tribunal further notes that material was provided by the applicant outlining the duties and responsibilities of the position and comparing the role with the position of retail store manager in accordance with ANZSCO code 1421111.

37. The Tribunal also notes a letter from Kelly Scutts the area manager of the company based in Western Australia providing a financial profile of the business since 2018 and also providing a testimonial to the nominee in regard to her duties and responsibilities in the business.

38. In summary it was stated that while the nominee/applicant does report to the business owner and applicant on the ongoing financial performance and must obtain some approval for the budgets she prepares, it is nevertheless the case that she holds wide managerial responsibility and controls many important aspects that contribute significantly to the effective business operation including inventory control, placing orders and communicating directly with suppliers and head office, monitoring employee performance, and maintaining customer relations and that she carries out a significant majority of the tasks attributed to a retail manager under the above definition.

39. The Tribunal also notes that those submissions were provided on 28 February 2023, 27 April 2023 and 27 June 2023 including such evidence as a record of the applicants and nominee’s involvement in charity events, various communications between the nominator, the nominee and other parties relevant to work issues, payslips, roster material, tax material, academic material, and other material. It was also noted that the current organisational chart shows that the business has three full-time staff members including the nominee and three part-time staff members, but that in fact there are four full-time staff members including the nominee and six part-time staff members.

40. At the hearing the Tribunal had a discussion with the nominator and the nominee/applicant regarding the application.

41. The nominator stated that this was his first sponsorship and that he first arrived in Australia on a student visa in 2009 where he studied business and finance and that in 2013, he moved to Broome where he started this business, and that at this time he’s involving himself in other business matters. He stated that he attends the store regularly and that it became clear that he needed a store manager in 2017 and that he did advertise at that time and that the nominee applied and was a very suitable candidate considering that she was working in the store as a customer service assistant, and that she had previously studied in the field, and had worked in another IGA in Melbourne prior to this and that she was a good candidate.

42. The Tribunal had a detailed discussion with the nominator about his role and the role of the nominee, and the nominator stated that he managed most of the payments made to suppliers and other financial and payroll matters but that the nominee looked after the store as a whole and engaged in such activities as managing staff, preparing rosters, liaising with suppliers, advertising the business, engaging in all day-to-day communications and management, and dealing with specific challenges in this business including power outages and regular flooding during the wet season. He also stated that there were special tasks and special items in the store due to the nature of the high aboriginal clientele in the area which also necessitated specific store management activities.

43. He also stated that he understood that the material provided in the original application was incorrect and that that may have played a part in the original application being refused.

44. The Tribunal also had a detailed discussion with the nominee who stated that she moved to Broome in 2017 with her husband and began to work in the store in August as a part-time customer service assistant and that the position of retail store manager was advertised commercially and that she did respond to the advertisements placed by the nominator and that she did have interviews which led to her being appointed to the position. She stated that she manages the staff, and controls the inventory in the business, she does set prices, and she engages in all marketing and advertising in the business. She stated that she currently earns $80,028 per annum and that she also receives $100 in a weekly vehicle allowance which she uses purely for her personal use and also receives a location allowance.

45. As noted above the Tribunal had a detailed discussion with the parties regarding the application and is satisfied that the nominee is carrying out the duties of a retail store manager in accordance with ANZSCO code 1421111.

46. As such the Tribunal finds that the applicant is the subject of an approved nomination.

47. Therefore, cl 187.233 is met.

48. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

49. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant and the second named applicant meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233 of Schedule 2 to the Regulations; and

    ·cl 187.223 of Schedule 2 to the Regulations.

    Stephen Witts
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.