AUS FOODS UNIT TRUST (Migration)

[2019] AATA 1076

AUS FOODS UNIT TRUST (Migration) [2019] AATA 1076 (14 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AUS FOODS UNIT TRUST

CASE NUMBER:  1619910

DIBP REFERENCE(S):  BCC2016/628643

MEMBER:Warren Stooke AM

DATE:14 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 May 2019 at 8:54am

CATCHWORDS
MIGRATION – Nomination – Temporary Residence Transition nomination stream – tasks and duties not match occupation – Skill Level 2 Retail Manager – role similar to Skill Level 4 Retail Supervisor – higher-level functions undertaken by business owner –  decision under review affirmed

LEGISLATION
Fair Work Act 2009
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, 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 15 November 2016 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 13 February 2016. 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because the duties undertaken by the nominee were predominantly not those of an ANZSCO Skill Level 2 Retail Manager and were more closely aligned with those of an ANZSCO Skill Level 4 Retail Supervisor.

5. The applicant appeared before the Tribunal on 2 May 2019 to give evidence and present arguments.

6. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate. In this regard, the applicant provided a copy of the decision to the Tribunal as part of the application, which was confirmed by the applicant.

7. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate's decision of 15 November 2016 and that he understood the content of the decision.

8. The applicant provided the Tribunal with an explanation, as to his understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate had found that the duties were more that of a shift supervisor than a Retail Manager. The applicant advised the Tribunal that he disagreed with the delegate's decision.

9. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

11. The applicant provided evidence that the business is a Fast Food Franchise with Red Rooster, at Kelmcott Western Australia, which he took over on 28 September 2015.

12. In response to information sought by the Tribunal, the applicant provided the following information concerning the business:

    a.The business hours are from 10.00am to 10.00pm. for the 7 days of the week;

    b.The establishment offers a combination of dine-in, drive through and delivery service;

    c.The establishment has 20 employees, who are either part-time or casuals;

    d.Whilst no formal qualifications are required the position requires hands on experience

13. The applicant, who is a director of the company and now resident in Victoria, stated that he has two partners, one who works part-time in the business and a second partner who is a silent partner (works at Crown Casino in Perth).

14. The applicant gave evidence that the working director does the accounts and payroll and that the directors set the financial targets. Further, evidence was provided that either of the directors involved in the business undertake recruitment of staff.

15. The applicant outlined the duties of the nominee as follows:

    a.Achieving and monitoring sales targets and manage the budget;

    b.Attend workshops on behalf of the company with Head Office;

    c.Undertake banking, IT and local store marketing;

    d.Responsible for the rosters;

    e.Attend to OHS procedures; including training re heights, lifting (crates are 15-20 kg), ensure safety with wet floors;

    f.Cleaning of fryer, as no one else is authorised;

    g.Responsible for administration.

16. The applicant confirmed to the Tribunal that the nominee undertakes the following duties, which correlate with the tasks assigned to the descriptor for a Retail Supervisor – ANZSCO 621511:

    a.Ensuring that customers receive prompt service and quality goods and services;

    b.Responding to customers' inquiries and complaints about goods and services

    c.Planning and preparing work schedules and assigning staff to specific duties

    d.Interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances (however this will be assumed upon full-time appointment to the position);

    e.Instructing staff on how to handle difficult and complicated sales procedures

    f.Examining returned goods and deciding on appropriate action

    g.Taking inventory of goods for sale and ordering new stock (performed online on a Sunday);

    h.Ensuring that goods and services are correctly priced and displayed

    i.Ensuring safety and security procedures are enforced

17. The evidence provided by the applicant identified the following scope of duties being performed by the nominee, which coincides with the descriptor for a Retail Manager – ANZSCO 142111:

    a.Determining product mix, stock levels and service standards

    b.Maintaining records of stock levels and financial transactions;

    c.Undertaking budgeting for the establishment;

    d.Controlling selection, training and supervision of staff;

    e.Ensuring compliance with occupational health and safety regulations;

18. The Tribunal notes that the following duties, which are within the descriptoer for a Retail Manager – ANZSCO 142111; have not been identified by the applicant as forming part of the duties of the nominee:

    a.Formulating and implementing purchasing and marketing policies, and setting prices;

    b.Promoting and advertising the establishment's goods and services;

    c.Selling goods and services to customers and advising them on product use.

19. The applicant clarified an observation made by the delegate that the business manager drew a wage. The applicant stated that the partner interacting with the business does not draw a wage but is remunerated through the payment of a ‘dividend’, which was stated in the financials of the business.

20. The applicant stated that he has done his best to recruit in Australia, but his experience included one resignation and two terminations of employment due to performance. He stated that the business is in decline because they don’t have high level management, which places pressure on the partners.

21. The applicant stated that staff selection has been through an interview process, but when these people were rejected the business sought to recruit through SEEK and Red Rooster’s data base.

22. The nominee was offered the position, despite not having experience with Red Rooster but he did have experience with fast food and the attendant policies and procedures, together with a Diploma in Management. Further, the nominee is currently not in Australia because he does not have a bridging visa.

23. The applicant stated that there is no familial relationship between the directors and the nominee.

24. The applicant stated that the position will be for permanent work and the salary to be paid is $55,000 p.a. based on 40 hours and the shift supervisor will cover the other required hours.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

25. Regulation 5.19(3)(h) requires the applicant to have 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.

26. The applicant gave evidence that employees have been issued with a Fair Work statement, as required under the Fair Work Act 2009, at the time of commencing employment.

27. The applicant stated that the employees are engaged under the terms of the Red Roster MOU 2009 Agreement, which is negotiated and put in place by Red Rooster’s Head Office and that the Agreement rolls over from year to year.

28. Accordingly, the requirements of r.5.19(3)(h) 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 in the relevant  Register of Instruments: Business Visas, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is 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 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. The Tribunal is not satisfied that the role and duties undertaken by the directors permit the nominated position to be capable of fulfilling all the intended duties of a Retail Manager – ANZSCO 142111. The Tribunal finds that the extent to which the nominee is proposed to engage in managerial functions is limited in scope and the priority is more likely to be attending to instore supervision of staff and a mix of duties, which include those within the descriptor for a Retail Supervisor ANZSCO 621511 and partly those duties included in the descriptor of a Retail Manager – ANZSCO 142111. This was confirmed in the evidence provided by the applicant, who stated “yes” to all the described functions identified in ANZCSCO 621511 for a Retail Supervisor as being a function performed by the nominee.

31. Further, the duties retained by the owners of the business, which include accounts; the payroll; recruitment and the setting of the financial targets, support the findings of the Tribunal. In addition, the evidence has confirmed that the following duties are not performed by the nominee, which is predominantly as a consequence of the services provided by the franchisor to the franchisee; including:

    a.Formulating and implementing purchasing and marketing policies, and setting prices;

    b.Promoting and advertising the establishment's goods and services;

    c.Selling goods and services to customers and advising them on product use.

32. As such, the Tribunal concurs with the conclusion of the delegate that the descriptor of Retail Supervisor - ANZSCO 621511 more correctly fits the description of the position.

33. The Tribunal finds that the owner provides substantive support to the business in terms of budgeting, financial planning, cash reconciliation, financial management, and the franchise agreement with Red Rooster.

34. The Tribunal is not satisfied that limited promotional activities of stock, would embrace a substantive part of the intended role and the duty would be incidental and not primary to the position. As such, the Tribunal is not satisfied that the position is appropriately classified as a Retail Manager and is in fact, in the Tribunal’s view, a Retail Supervisor, particularly given the retention of higher-level functions by the owner, including financial planning, franchise management, and business accounting and payroll services through one of the directors.

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

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

    DECISION

37. The Tribunal affirms the decision under review to refuse the nomination.

    Warren Stooke AM
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:         

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.