BGA Trading Pty Ltd (Migration)

BGA Trading Pty Ltd (Migration) [2023] AATA 891 (12 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  BGA Trading Pty Ltd
REPRESENTATIVE:  Mr Gagan Butalia (MARN: 1791504)
CASE NUMBER:  1921307
HOME AFFAIRS REFERENCE(S):          BCC2018/1250673
MEMBER:Terrence Baxter
DATE:12 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 April 2023 at 9:39am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – store manager – tasks of position – nominee the brother-in-law of director – position in regional area cannot be filled locally – evidence of advertising for position provided – comparison of tasks of position and ANZSCO classification – scope of business operations and nominee’s qualifications, experience and performance of position – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, BGA Trading Pty Ltd, applied for approval on 15 March 2018. The applicant nominated Mr Navdeep Singh (the nominee) in the position of Store Manager. At the time of the application, the applicant’s business traded as 5Star Supermarket Gulargambone from premises situated at 10 Bourbah Street, Gulargambone, New South Wales. The applicant’s business now trades from the same address as Friendly Grocer Gulargambone. The applicant has employed the nominee as Assistant Store Manager on a part-time basis from June 2016, as Store Manager (part-time) from July 2017 and full-time in that position since August 2021.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister in the relevant instrument.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 2 August 2019.
The sole director and shareholder of the applicant, Mr Gurpinder Singh (Mr Singh), appeared before the Tribunal by video conference on 31 January 2023 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.
The applicant was represented in relation to the review by its registered migration agent Mr Gagan Butalia of Immigration Master Pty Ltd. The representative attended the Tribunal hearing by video conference. Mr Nitin Malik attended and observed the hearing as an additional representative by video conference.
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
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Evidence presented prior to the hearing
The applicant produced to the Department of Home Affairs (the Department) the following documents:
a.Market salary evidence.
b.An employment contract of the nominee dated 28 February 2018.
c.A lease agreement of the applicant’s business premises.
d.Submissions from the applicant’s accountant dated 23 February 2018 and 12 March 2019.
e.Payslips of Mr Singh evidencing his full-time employment as a Senior Functional Analyst.
f.Job advertisements for the position.
g.Submissions of the applicant to the Regional Certifying Body (RCB) Regional Development Australia Orana, Dubbo dated 2 March 2018 and 5 March 2018.
h.A PAYG payment summary of the nominee for the 2017 financial year.
i.Medical documents regarding Mr Singh’s father, Mr Baldev Singh.
j.Financial statements of the applicant for the 2017 and 2018 financial years.
k.An organisational chart.
l.An ASIC business name registration certificate and business name extract for the name 5Star Gulargambone.
m.Tax invoices from multiple suppliers addressed to the applicant.
n.Business activity statements of the applicant for the period of July 2017 to December 2018.
o.A franchise agreement with SPAR Licensing Pty Ltd dated 9 May 2016.
p.Correspondence and a Form 1404 from the RCB dated 6 November 2018.
q.A submission from the applicant dated 10 July 2019.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.An ASIC Company extract of the applicant.
c.Financial statements of the applicant for the 2020 and 2021 financial years and a draft statement for the 2022 financial year.
d.Business activity statements of the applicant for the period from October 2018 to June 2021, and from October 2021 to September 2022.
e.Reference letters of the nominee dated 25 July 2022, 27 July 2022 and 14 August 2022.
f.Copies of various documents provided to the Department.
g.Company tax returns of the applicant for the 2019 and 2020 financial years.
h.An updated organisational chart.
i.Franchise agreements with Liquor Marketing Group Limited dated 14 November 2016 and with Four Squares Stores (QLD) Limited dated 3 May 2021.
j.Business bank account transaction statements for periods from 16 September 2022 to 13 January 2023.
k.A submission of the applicant dated 24 January 2023.
l.A submission of the representative dated 30 January 2023.
Evidence presented regarding the applicant’s operations
The applicant’s business is conducted in Gulargambone, New South Wales which is a town in rural New South Wales approximately 490 km by road from Sydney. Gulargambone is located on the Castlereagh Highway between the towns of Gilgandra and Coonamble and is approximately 40 km each way from those towns.
The applicant acquired the business in June 2016. Mr Singh originally intended that his father, Mr Baldev Singh, would assist him with management of the business on a part-time basis. However, because of health issues, Mr Singh senior has been unable to assist in the management of the business. The applicant employed the nominee on a part-time basis when the nominee was completing his studies and has employed him full-time in the position since August 2021. Mr Singh resides in Baulkham Hills, Sydney and is engaged on a full-time basis as an IT consultant.
The nominee gave evidence of his employment in the position and the tasks performed by him in the position.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.A business activity statement of the applicant for the period from July 2021 to September 2021.
b.A company tax return for the 2021 financial year.
c.Financial statements of the applicant for the 2021 and 2022 financial years.
d.Job advertisements for the position accompanied by submissions of the applicant to the RCB regarding the recruitment efforts dated 5 March 2018 and 13 September 2018.
e.A comparison of the duties of the nominated position against the duties of the occupation of Retail Manager (General) specified in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
f.A market salary report dated 20 February 2023 accompanied by current market salary evidence.
g.An employment contract of the nominee dated 17 February 2023.
h.An ASIC business name registration and extract of the name Friendly Grocer Gulargambone.
i.A business bank account transaction statement of the applicant for the period of 13 May 2022 to 15 June 2022.
j.A submission from the applicant’s accountant dated 21 February 2023.
k.An ATO transaction statement of the applicant for the period from 21 February 2021 to 21 February 2023.
l.An Advanced Diploma of Leadership and Management awarded to the nominee accompanied by an academic transcript.
m.Confirmation that the nominee had completed the requirements for the degree of Bachelor of Business Information Systems accompanied by an academic transcript.
n.PAYG payment summaries of the nominee for the 2017, 2018, 2019, 2020, 2021 and 2022 financial years.
o.A taxation notice of assessment of the nominee for the 2022 financial year.
p.A PAYG payment summary of Mr Singh for the 2022 financial year.
q.A taxation notice of assessment of Mr Singh for the 2022 financial year.
r.An Income Statement of the nominee for the period from 1 July 2022 to 29 January 2023.
s.A submission of the representative dated 21 February 2023.
The application is compliant: reg 5.19(4)(a)
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) of the Migration Act 1958 (Cth) (the Act). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.
Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ a paid employee in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the person identified in the application as a paid employee to work in the position under the nominator’s direct control, clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.
[1] Dictionary.com (accessed March 2023).
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Store Manager. On page 6 of the application, the nominee is identified as the nominated person. The Tribunal is therefore satisfied that the application for approval identifies a need to employ an identified person as a paid employee in the position of Store Manager under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ the nominee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).
As regs 5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant has provided evidence from ASIC that it is registered and that its trading name Friendly Grocer Gulargambone is also registered. The applicant’s business activity statements establish that the applicant’s ABN is active, and that the applicant is registered for GST. The applicant has provided financial statements up to the 2022 financial year together with taxation returns up to the 2021 financial year and business activity statements to the month of September 2022.
The applicant’s financial statements reveal that it has received total income in the 2021 and 2022 financial years of $1,777,765 and $2,407,057 respectively. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely a retail store.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour hire: reg 5.19(4)(c)
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.
Mr Singh gave evidence that the applicant does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The employment contract dated 17 February 2023 produced to the Tribunal provides that the position is full-time (38 hours per week). The position description is Store Manager. The contract provides that the nominee’s employment is for at least two years from the commencement date which is the date of approval of the nominee’s Subclass 187 visa. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.
However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The salary payable to the nominee under the employment contract is $62,000 plus superannuation.
The applicant’s retail business is profitable, recording gross profits of $315,515 and $294,340 in the 2021 and 2022 financial years respectively. During the 2022 financial year, the applicant also received professional services income of $248,000 from Mr Singh’s IT consultancy and paid him a salary of $200,000. The applicant’s net profit increased to $44,106 in the 2022 financial year after having paid a salary of $53,500 to the nominee.
Mr Singh gave evidence of the applicant’s increased sales since the nominee had arranged to re-badge the retail business as a Friendly Grocer and the liquor outlet as a Bottlemart. The applicant’s sales increased by over 22% in the 2022 financial year. Although the salary payable to the nominee under the 2023 employment contract is slightly higher than the salary which was paid in the most recent financial year, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Store Manager in accordance with the employment contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(i) is met.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
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.
The applicant does not have an Australian citizen or permanent resident performing equivalent work at the nominee’s workplace. The salary to be paid by the applicant to the nominee is $62,000 per annum. The applicant is entitled to leave as specified in the employment contract. The applicant is required to make superannuation payments on behalf of the nominee in accordance with the relevant legislation.

The applicant provided to the Tribunal evidence from the platform PayScale that the salary payable to a Retail Manager in Australia ranges between $48,000 and $74,000 per annum with an average of $56,024 per annum. The applicant also provided evidence in the form of job advertisements for the position of Retail Manager in rural New South Wales with advertised salaries between $52,000 and $68,000 per annum.
The Tribunal also has had regard to the certificate of the RCB, being Form 1404 issued by Regional Development Australia Orana, Dubbo dated 6 November 2018, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C).
Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
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 regs 1.13A and 1.13B.
There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
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.
There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h)
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 legislative instrument IMMI, 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 (see legislative instrument IMMI 17/058), 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.
The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 2828 (Gulargambone, New South Wales). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 10 Bourbah Street, Gulargambone, New South Wales 2828. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.
Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia
As recorded in the preceding paragraph, the Tribunal finds that the position is located at 10 Bourbah Street, Gulargambone, New South Wales 2828. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ the nominee to work in the position under the applicant’s direct control
Mr Singh was asked at the hearing why there was a genuine need for the applicant to employ the nominee to work as Store Manager. He said that he resided in Baulkham Hills, Sydney which, according to the applicant’s submissions, is located 490 kilometres by road from the location of the business. Mr Singh stated that he is engaged full-time as an IT consultant and that he also has family commitments.
Mr Singh was asked why a Retail Supervisor could not handle the management of the store with assistance from Mr Singh personally. He stated that the business does employee a supervisor who works under the direction of the nominee. This is confirmed by the applicant’s current organisational chart. Mr Singh said that the supervisor cannot perform the tasks which are being and will be performed by the nominee and he gave evidence of the extent of those tasks. He stated that the supervisor “filled in” for the nominee when the nominee was on leave.
As recorded earlier in these Reasons, it was initially envisaged by the applicant that Mr Singh’s father, Mr Baldev Singh, could assist in the management of the business. However, he has been unable to do so because of health issues.
The Tribunal notes that the nominee was employed on a part-time basis as Store Manager since July 2017 and on a full-time basis in that position since August 2021. The Tribunal also has regard to the certificate of the RCB referred to in paragraph 39 above.
The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Store Manager at the location under the nominator’s direct control. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.
Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area
The position was advertised in local newspapers and online in June 2017. The applicant stated in a submission to the RCB that there were no suitably qualified local applicants for the position and that the nominee (who had previously been employed as part-time Assistant Store Manager) was then employed on a part-time basis as Store Manager. The position was again advertised in local newspapers in November 2017.
The applicant provided recruitment reports to the RCB that stated that three applications were received in response to the job advertisements. The applicant has stated that none of the applicants were prepared to relocate to Gulargambone and that it is a requirement that the Store Manager reside in the town so that urgent issues involving the business can be resolved promptly.
Mr Singh disclosed at the hearing that the nominee is his brother-in-law. This information caused the Tribunal to make further enquiries of Mr Singh to determine whether there had been a genuine attempt to ascertain whether the position could be filled locally, or whether the nomination was made in order to secure a migration outcome for the nominee. Mr Singh gave evidence of his assessment of the job applications and of the reasons why the applications were rejected.
The Tribunal accepts that the position is to be filled in a reasonably remote regional area and accepts the evidence of Mr Singh regarding the recruitment process. The Tribunal also places weight on the certificate of the RCB referred to in paragraph 39 above.
Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, reg 5.19(4)(h)(ii)(C) is satisfied.
Regulations 5.19(4)(h)(ii)(D) and (DA) – 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 and the occupation is applicable to the proposed employee in accordance with the specification of the occupation
The occupation proposed by the applicant is Retail Manager (General) which has the six‑digit ANZSCO code 142111 and which is specified in the relevant instrument, being IMMI 17/058. The tasks specified in the ANZSCO for that occupation include:
·     determining product mix, stock levels and service standards
·     formulating and implementing purchasing and marketing policies, and setting prices
·     promoting and advertising the establishment's goods and services
·     selling goods and services to customers and advising them on product use
·     maintaining records of stock levels and financial transactions
·     undertaking budgeting for the establishment
·     controlling selection, training and supervision of staff
·     ensuring compliance with occupational health and safety regulations.
The nominee’s duties and responsibilities according to the employment contract are:
·     Organising, controlling, and coordinating the entire operations of the store to ensure smooth running of business.
·     Managing and motivating a team to increase sales and ensure efficiency, monitor staff performances, and decide bonuses and salary increments based on performance and determine and decide eligibility for promotion.
·     Managing stock levels and making key decisions about stock control, stock mix and products offered for sale. Take over all stock ordering and dealing with suppliers.
·     Ensure that all products offered for sale meet the Company and Franchise requirements.
·     Analysing sales figures and forecasting future sales based on these figures, making appropriate changes in products based on these figures.
·     Analysing and interpreting trends to facilitate planning.
·     Undertake monthly, quarterly, and annual budgeting of the business with assistance from Company Accountants, set targets and ensure budgeting targets are met.
·     Setting up standards for quality and customer service, implementation of these standards, monitoring and ensuring standards are always met.
·     Implementing Occupational Health and Safety Standards as per Regulatory Requirements and ensuring these standards are always adhered to through regular monitoring.
·     Design, Develop and Implement Marketing Policy to increase sale and profitability.
·     Take full responsibility for Staff recruitment, including advertisements for positions, liaison with Recruitment Agencies, shortlisting and interviewing of applicants, final selection, and salary.
·     Ensuring new staff are trained properly and providing mentoring and motivation.
·     Ensure all records of Financial Transactions are up to date and as per Regulatory and Business Requirements.
·     Ensuring smooth operation and management of the store through delegation.
·     Train staff in selling goods, providing excellent services to customers, and advising them on products use by personal demonstration, and adequate training.
·     Setting up KPls and track these using an appropriate tool.
·     Create goodwill amongst staff and customers.
·     Display an unforgettable presence in customer relations.
·     To maintain profitability and reducing overheads by minimising costs and wastage.
Based on the evidence provided to the Department, the delegate was not satisfied that this requirement had been met. The delegate found that the predominant tasks of the position are not those of an ANZSCO Skill Level 2, Retail Manager but rather that they are more closely aligned with those of an ANZSCO Skill Level 4 retail supervisory position.
The applicant provided written submissions regarding the tasks to be performed by the nominee and a detailed comparison between the duties included in the ANZSCO classification for Retail Manager (General) and the duties of the nominee. Mr Singh gave evidence at the hearing regarding the tasks to be performed by the nominee. He highlighted several instances where the nominee had made changes to the business structure which were undertaken at a higher level than would be expected from a Retail Supervisor. Those changes included the rebranding of the store from the SPAR branding to the Friendly Grocer branding, the installation of solar panels to the store, the rebranding of the liquor outlet to Bottlemart and the establishment of a new fruit and vegetables section within the store.
Mr Singh gave detailed evidence of tasks performed by the nominee within the ANZSCO classification including budgeting, staffing and rostering, purchasing and marketing policies, promotion of the business within the local community and preparation of financial reports.
Mr Singh stated that he spoke with the nominee by telephone on a weekly basis to discuss management of the business. He said that he personally only travelled to the business premises in Gulargambone rarely, in cases of emergency. The nominee, who was not present in the hearing when the evidence of Mr Singh was given, provided evidence of the tasks performed by him as Store Manager. His evidence was consistent with that of Mr Singh.
Having regard to Mr Singh’s limited involvement in the management of this business, the Tribunal is satisfied that the nominee does perform the majority of the tasks of the nominated occupation.
Having regard to the evidence, the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Retail Manager (General) specified by the Minister in the relevant instrument. According to the ANZSCO, the occupation is a Skill Level 2 occupation, requiring that the nominee holds an AQF Associate Degree, Advanced Diploma or Diploma. Evidence has been provided to the Tribunal that the nominee holds an Advanced Diploma of Leadership and Management and a degree of Bachelor of Business Information Systems. The Tribunal is satisfied that the occupation is applicable to the nominee. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and reg 5.19(4)(h)(ii)(DA) are met.
Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position
As set out in paragraph 49 above, the Tribunal is satisfied that the business operated by the applicant is located at 10 Bourbah Street, Gulargambone, New South Wales 2828, which is the same location as the address of the position to be filled. Accordingly, the requirements of reg 5.19(4)(h)(ii)(E) are met.
Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same State as the location of the position has advised the Minister about the matters mentioned in regs 5.19(4)(h)(ii)(B) and (C)
The certificate referred to in paragraph 39 above was submitted to the Department. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of reg 5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Terrence Baxter
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 an identified person, as 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).

[2023] AATA 891

12 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction