Dreamchasers Pty Ltd ATF Serendipity Unit Trust (Migration)

Dreamchasers Pty Ltd ATF Serendipity Unit Trust (Migration) [2018] AATA 3479 (28 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dreamchasers Pty Ltd ATF Serendipity Unit Trust
CASE NUMBER:  1609416
DIBP REFERENCE(S):  BCC2015/2614203
MEMBER:Denise Connolly
DATE:28 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 28 August 2018 at 9:20am

CATCHWORDS
Migration – Nomination refusal – Direct Entry Scheme – Genuine business – Nominated occupation – Retail Manager – Whether tasks match the nominated position – Nominee performs some tasks relevant to the nominated position – Business franchise – Marketing and suppliers largely controlled by the franchise – Nominee currently covering others shifts – Proposing to pay nominee under market rate – Decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 Immigration on 10 June 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).
The applicant applied for approval on 8 September 2015. 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).
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 the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3.
Mr Samirkumar Patel appeared before the Tribunal, on behalf of the applicant, on 2 August 2018 to give evidence and present arguments. The Tribunal also took evidence from the nominee, Mr Avanpreet Singh.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 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.
At the time of application the applicant indicated the business needed a Retail Manager to work in their Crust Gourmet Pizza store in Claremont, W.A. The base rate of pay nominated was $42,100. The applicant provided evidence that the business was lawfully operating, including BAS for periods in the 2015 financial year and documents from ASIC. The applicant provided a copy of the employment agreement between the business and Avanpreet Singh, the nominee. It also provided evidence from the Fair Work Ombudsman regarding rates of pay for retail employees. In a written submission it is argued that the classification Retail Employee Level 6 is relevant to the work to be performed by the nominee. It is described as having an indicative job title of Manager/Duty Manager in a shop without departments/sections.
The applicant provided an organisational chart showing that the store employs a General Manager/Store Operator and a Director/Accountant, as well as the nominee and a Shift Supervisor/Assistant Manager. There were also numerous pizza makers, customer service officers, and delivery drivers employed by the business. The applicant provided evidence that on 12 November 2015 the Regional Certifying Body advised that the relevant requirements in r.5.19(4) were satisfied.
The applicant provided a job description for the required position indicating its responsibilities and duties would be as follows:
·organising and controlling the store’s stock levels and food waste
·contacting and negotiating with suppliers and ordering stock to ensure merchandise is at adequate levels. Making sure the products are correct from brand perspective and affordable
·managing staff recruitment and staff selection process
·training and managing staff within the store in a correct manner and according to designated procedure mentioned by franchisor
·organising staff rosters to ensure labour cost stays below benchmark of food industry and operation still remains intact from quality and customer service side
·preparing monthly budgets and sales reports
·maintaining records of sales figures and stock levels and reporting to Director as required
·organising special promotions, display and events to advertise Crust’s products especially through social media (i.e. Facebook and Twitter). Will also need to ensure that all displays are current and according to store specials
·ability to effectively respond to customer complaints and comments and give sales advice to customers regarding menu items
·ensuring standards of quality, customer service, cleanliness and Occupation Health and Safety are met as workplace by all the crew every single time
·analysing sales figure from past using database in Point-of-Sale and controlling labour and food cost accordingly to maximise the profits
·taking better initiative to enhance growth of business and ways to improve sales and sustainability of business in future
·developing business opportunities such as adding liquor licence and alfresco dining to store’s current setup and extending or revising trade hours to catch maximum customer by providing a better dining experience
·contacting local businesses, schools, hospitals, offices and showrooms on regular basis to obtain catering order to capitalise the revenue of business
·developing new ways to improve production of pizza such as adding a production line concept to existing Crust set up to gain maximum productivity from same crew.
In a written submission the representative states that the Director works elsewhere as a workshop manager for NHP Electrical Engineering Products Pty Ltd and is only an investor in the business. The business is owned by a unit trust which has three family trusts as beneficiaries. The trust beneficiaries have interests in three other pizza operations, and none of the trusts is involved in all of the outlets. Each Crust store is run full-time by a Store Manager. Crust Claremont offered promotions to Manager to some of their casual staff however they were studying in fields unrelated to hospitality or did not want to take on the role full-time. Mr Samirkumar Patel manages Crust Inaloo and therefore can only be the Executive Manager of the other three stores in which he has an interest. The nominee has been working as the Manager for Crust Claremont since September 2015.
The applicant provided copies of the business’ bank statements, ending April 2016.
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It notes that when making the nomination application the applicant nominated the occupation Retail Manager (ANZSCO 142111) with a base salary of $42,100 per annum. The nominator indicated that the business commenced trading in August 2014 and employs eight Australian employees and seven foreign employees. The delegate found that the business, trading as Crust Pizza, Claremont, is a fast food outlet. The delegate considered the ANZSCO definition for the occupations Retail Manager and Retail Supervisor. Having considered the organisational chart provided the delegate noted that the management team includes a General Manager/Store Operator and a Director/Accountant. She noted that a Retail Manager is said to be responsible for the financial aspects of the business but in this case there is a Director who is also an accountant. Having considered the nature of the franchise business and the evidence about the position’s responsibilities, she formed the view that the nominated position was not a Retail Manager but rather a Retail Supervisor. As a Retail Supervisor is not at skill level 1, 2 or 3 in ANZSCO she was not satisfied that r.5.19(4)(h)(ii)(D) was met.
The Tribunal has considered the ANZSCO descriptions for the nominated occupation, and for Retail Supervisor. While not bound by these descriptions the Tribunal finds ANZSCO descriptions to be a useful tool in assessing the tasks typically undertaken, and the skill level of an occupation. Those descriptions relevantly state in part as follows:
MINOR GROUP 142 RETAIL MANAGERS

RETAIL MANAGERS organise and control the operations of establishments which provide retail services.
Indicative Skill Level:
Most occupations in this minor group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
odetermining product mix, stock levels and service standards
oformulating and implementing purchasing and marketing policies, and setting prices
opromoting and advertising the establishment's goods and services
oselling goods and services to customers and advising them on product use
omaintaining records of stock levels and financial transactions
oundertaking budgeting for the establishment
ocontrolling selection, training and supervision of staff
oensuring compliance with occupational health and safety regulations
UNIT GROUP 6215 RETAIL SUPERVISORS

RETAIL SUPERVISORS supervise and coordinate the activities of retail sales workers.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate II or III (ANZSCO Skill Level 4)

In New Zealand:
NZ Register Level 2 or 3 qualification (ANZSCO Skill Level 4)

At least one year of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
oensuring that customers receive prompt service and quality goods and services
oresponding to customers' inquiries and complaints about goods and services
oplanning and preparing work schedules and assigning staff to specific duties
ointerviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances
oinstructing staff on how to handle difficult and complicated sales procedures
oexamining returned goods and deciding on appropriate action
otaking inventory of goods for sale and ordering new stock
oensuring that goods and services are correctly priced and displayed
oensuring safety and security procedures are enforced

Occupation:
621511 Retail Supervisor

621511 RETAIL SUPERVISOR

Alternative Titles:
Checkout Supervisor
Sales Department Supervisor

Supervises and coordinates the activities of retail sales workers.
Skill Level: 4
The Tribunal also notes that, at the time of hearing Joboutlook indicates that a Retail Manager typically $1,000 weekly before tax[1], and Payscale indicates the nominated occupation’s average salary is $50,626 per annum and for Perth it is $50,025[2].
[1] accessed 31 July 2018
[2] accessed 31 July 2018
Prior to the hearing the applicant provided to the Tribunal a copy of the franchise agreement between the applicant and CGP Systems Pty Ltd, the franchisor. It sets out the terms of the franchise covering issues such as the purchase of ingredients, products and services, business performance requirements, marketing, and aspects of customer service. The applicant also provided a profit and loss statement for the 2018 financial year indicating that the business was running at a loss and its net profit was -$22,484, and for the 2017 financial year the net profit was -$54,760. The applicant also provided the advice from the Regional Certifying Body indicating the RCB had formed the view that the applicant met certain requirements in r.5.19(4). Also provided was the PAYG payment summary and payslips for the nominee. These record that in the 2018 financial year the nominee was paid $34112 by the applicant.
The applicant’s representative provided a written submission which sets out the business and trust arrangements. It explains that Mr Patel owns and operates multiple businesses spread across large distances within Western Australia. He is unable to maintain close or direct control of the operations of each of these businesses. Also his wife has a medical condition which needs to be taken into account. The nominee has specific expertise and knowledge of the industry and the business relies on him to perform the duties of a retail manager. These duties were set out in detail and were discussed with the applicant at the hearing. The representative also explains that the franchise agreement permits the franchisee to employ a shop manager if they are unable to manage the operations. The representative set out a range of duties that the Director, Retail Manager (nominee), Accountant and floor staff undertake and compared the duties of the tasks described in ANZSCO for the nominated occupation with the duties accepted by the delegate. He indicated that the budget is not set by the franchisor but set by the store manager and approved by the franchisor and business owner. He referred to cases where the AAT (differently constituted) formed the view that franchisees may need a store manager who will perform the tasks of a Retail Manager. He also indicated that the business’ stability relies on the retainment of the nominee as Retail Manager. He asserted that the nominee has been offered similar terms to an equivalent Australian worker. He addressed other requirements of r.5.19(4) including genuineness of the position, the nominee’s skills and qualifications and benefits to Australia.
The applicant provided a letter from the franchisor dated 24 July 2018 explaining that the franchisor understands that the nominee has been nominated by the business to work in the position Retail Store Manager and that he undertakes certain tasks in that employment. Another letter from the franchisor dated 13 May 2016 confirms that the franchisor is satisfied that the nominee has the necessary skills and experience to be the Retail Store Manager for Crust Claremont.
At the hearing the Tribunal explained the requirements of the law and discussed with the applicant the nature and needs of the business, its financial circumstances and other matters relevant to the requirements in r.5.19(4). The following is a summary of the oral evidence provided at the hearing.
The applicant confirmed that he entered the Crust franchise agreement some years ago. The agreement was signed in February 2014. He confirmed that the menu is determined by the franchisor and is the same nationally. Generally speaking the suppliers are determined by the franchisor however there have been issues with supplies and numerous complaints from the franchisees because the suppliers selected by the franchisor are expensive. He indicated that the franchisor is changing its suppliers but in the meantime he has had to find local suppliers. He deals with about six other suppliers. He undertook the search for new suppliers and Crust allowed him to do this. He meets with Crust every three or four months. With respect to training, every time there is a change of menu the business receives charts from the franchisor. One person per store attends the training. Mr Patel has attended personally, the last time being about three months before the hearing. He then emails out to the different stores the changes to the menus, or he uses Whatsapp to pass on information. The prices of pizzas and other items are set by Crust with an occasional exception. The applicant has raised concerns with the franchisor because Uber eats charges 25% and this is eating into his profit. Menulog charges 12% but it is less commonly used. At times up to 50% of his sales can come from Uber eats. He also pays the franchisor 11%. This means he makes little profit from his sales and the business is struggling. In terms of the breakdown of sales he thinks about 75% of his sales come from phone or website orders of which about 25% are from Uber eats and about 5% come from orders made in the shop. All the franchisees have been meeting to discuss this issue. No one is making any money. The franchisor will not provide figures for budgets or benchmark sales and will not make any promises. The applicant estimates he spends about 35% of his total sales on food, about 30% on wages, 11% goes to the franchisor and ultimately he makes about 5% profit.
The applicant confirmed that, generally speaking, the marketing is done nationally by the franchisor. There is some local marketing undertaken by the business. They might come up with an idea to link up with a gym or a school. However any local marketing, including any leafleting, has to be approved by the franchisor. The Tribunal asked if any local marketing had been undertaken recently and he indicated it had not. He confirmed that the market in Western Australia has declined. If they decide to do some store sampling he has to discuss this with other members of the family trust because of the costs involved. He acknowledged that the Claremont store is not making much profit. However he cannot change any of the pizzas because this is dictated by the franchisor.
The Tribunal asked the applicant who negotiates with suppliers other than those dictated by the franchisor. He indicated that he deals with the suppliers. Sometimes the nominee might make a recommendation about someone but the applicant cannot buy it until he checks the quality. He then needs to tell the franchisor. Sometimes other stores recommend to him a new supplier. He generally has contact with the franchisor about this issue.
The Tribunal noted that the organisational chart indicated that there is a store operator. It asked what the store operator does. He indicated that when he signed the franchise agreement he nominated that he would be the store operator. He undertook the training. However the agreement allows for some flexibility. In the last two years he has been to the Claremont store only about five or six times however he still deals with the franchisor. The nominee can deal with the franchisor on small matters but generally the franchisor will not talk to anyone else but him. The financial issues are dealt with by his accountant, who does the bookkeeping and the fortnightly pay cycle. There is currently about $4000 in the business account.
The Tribunal asked the applicant about the business’ operations. He said the business is open from 5pm to 9pm, Sunday to Thursday and 5pm to 2am Friday and Saturday. He does not have a shift supervisor on each shift. From Sunday to Thursday he rosters three or four workers and on Friday and Saturday there are seven or eight people working.

The Tribunal asked the applicant if the nominee is currently working in the nominated position. The applicant indicated that he is. The Tribunal asked when the nominee works. He indicated that there is no fixed roster for the position. The nominee has to cover when others cannot work. From Monday to Thursday the store is quiet. The Tribunal asked the applicant if the nominee is currently working full-time. He indicated he started worked full-time in the position over a year ago, in late 2016. Until then the applicant was going to the Claremont store. However his wife lives in Port Hedland running a Pizza Capers outlet, another of his businesses. He sometimes goes to Port Hedland so cannot manage the Claremont store.
The Tribunal asked the applicant about the tasks the business needs the position to undertake. He indicated that the position manages the store overall but sometimes works in the kitchen. It provides customer service, is responsible for stock control and some promotion/marketing. The Tribunal noted that one of the tasks in the written description indicates that the position negotiates purchases. It asked the applicant to describe what the nominee does. He indicated he calls and arranges the delivery of supplies. If he uses a new supplier, he asks about costs of goods and then the applicant approves the purchase. He last did this about three or six months ago when he found a supplier for lamb and prawns.
The Tribunal noted that the written job description indicates the nominee will forecast future sales. It asked him to describe this duty. He indicated the nominee looks at data to see what happened in the same week in the previous year. For example he does this to project sales over a long weekend. This information then dictates orders and rosters. The Tribunal asked about the task indicating he provides and organises training and development. He indicated that the nominee is usually able to find new staff from family or friends. However Claremont does not often require new staff. He indicated that he thought it last happened about six months ago. He has about 6 to 8 people who regularly undertake two shifts per week.
The Tribunal asked about the position’s task, maintaining awareness of market trends. The applicant indicated that Uber eats has changed the entire market. Before the franchisor signed a national agreement with Uber he was being charged 30%. He signed up with Uber because his business was declining and he felt he had no choice. While the sales increased after he signed with Uber he is making little profit because of what they charge.
The Tribunal asked if the nominee is currently doing all of the duties required of the position. He acknowledged that this is the case. He undertakes all the ordering, rostering and dealing with complaints. However there are not many complaints. They usually relate to late delivery. He ensures that the crew are keeping up quality and standards. He deals with local council when an inspector visits. Whenever there is a menu change he organises the distribution of flyers. The Tribunal asked if he nominee is ever involved in other duties. He indicated that he only does deliveries when the deliveryman is busy. He is involved in food preparation and customer service. He nearly always works on Fridays and Saturdays when the business is its busiest. The business has tables and seating for 16 but these facilities are generally not used. He acknowledged that the position is not involved in financial aspects of the business.
The Tribunal raised the issue of whether the store requires the nominee to perform the full range of duties of a Retail Manager as described in ANZSCO. It indicated it might form the view the position is that of a Retail Supervisor. The applicant indicated that he is not the store manager as he is involved in other stores. He indicated that when he worked for McDonald’s as a shift supervisor he did not have the range of responsibilities undertaken by the nominee. The shift supervisor cannot make decisions. The nominee does make decisions in his business. The Tribunal asked for examples of this. He indicated recently the lights went out and they had to empty the store. The nominee arranged for people to load cars and shift food to other stores’ freezers. No other business partner has any interest in the store.
The Tribunal raised its concern about the business’ financial circumstances. It noted that the profit and loss statement indicates that the business is still running at a loss. He acknowledged that he is not making much profit. He borrowed 50% of the cost of the franchise from ANZ and he is still repaying the loan. He has five or six years left on the loan. He needs to continue to run Claremont to pay it. He acknowledged that the store is making a loss but if he closes it down he will suffer huge losses. He is trying to sell the business but has been unsuccessful so he has no choice but to run it. The nominee knows more about the business than anyone. The Tribunal asked who works in the business if the nominee is unavailable. He indicated his brother-in-law opens it when the nominee is not there. The nominee might also roster someone who is able to run it in his absence. However the nominee is better at ordering than the applicant as he orders minimum stock which is better for their cash flow.
The Tribunal noted that the nominee’s PAYG payment summary provided to the Tribunal by the applicant indicates that in the 2018 financial year he earned only $34,112. The Tribunal explained its concern, given the applicant’s oral evidence that the nominee has been working full-time since late 2016, that the business may be unable to provide the terms and conditions of employment that will be no less favourable than the terms and conditions that would be provided to an equivalent Australian citizen. The Tribunal also noted that the annual salary earned by the nominee was less than that nominated in the contract. The applicant indicated that the nominee had been away for a few months. The Tribunal asked in those circumstances how the business was able to run without him. He indicated he had to go to the business and arrange for others to undertake the duties. The Tribunal asked for particulars regarding the nominee’s absence. He indicated that he was away for about a month. The Tribunal asked why he was not paid recreational leave for the month. The applicant did not have an explanation.
The Tribunal noted that the salaries indicated in Joboutlook and Payscale suggest that the business is proposing to pay the nominee less than an equivalent Australian would earn undertaking the duties of a Retail Manager. It indicated that this might suggest that the position is not in fact that of a Retail Manager. The applicant indicated that the wages were suggested by the migration agent. He had no idea why the suggested wages were less than those set out in Joboutlook and Payscale. He indicated that if the sales are down they might have to put the nominee on casual wages. The Tribunal explained that this evidence indicated that the requirements of r.5.19(4)(d) and (e) might not be met. The applicant indicated that Crust agrees for the nominee to be the store manager but he has not had the training. He indicated that the training costs about $15,000. The business is already running at a loss. In the past there have been times when he has not had the money to pay wages and rent however he is been able to find it using revenue from other sources. He indicated that he also has some financial difficulty with another of his stores at Kwinana. He indicated that the franchise agreement finishes next year in August and he has a renewal option for the lease. However he is trying to sell the business. The Tribunal raised its concern that if the business shuts down due to financial difficulties the applicant may not be able to employee the nominee on a full-time basis in the position for at least two years. This raises concerns for the Tribunal that the requirement of r.5.19(4)(d) might not be met.
The Tribunal went through the other requirements of r.5.19(4). The applicant indicated that he is not aware of any relevant adverse information known to Immigration. He has not sponsored anyone else. He has applied for another nomination approval and it is currently waiting to be heard by the AAT. He believes the tasks to be performed are those of a Retail Manager. He needs the nominee and has tried in the past to fill the position with an Australian resident but has been unsuccessful. There was an Australian citizen working for the business but she moved and has commenced a law degree. He indicated that the nominee knows how to run his business so that it does not lose money.
The Tribunal asked the applicant he had any other evidence to give regarding the requirements of r.5.19(4). He had nothing else to add.
The Tribunal took evidence from the nominee regarding duties. His oral evidence was consistent with that of the applicant.
No less favourable terms and condition of employment: r.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.
While the Tribunal is satisfied the applicant has made a valid application, and is actively and lawfully operating a business in Australia, for the following reasons, it has concerns that the terms and conditions of employment applicable to the nominated position may be 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 Tribunal notes that the nominated base salary is $42,100. The employment agreement was signed on 24 August 2015. The Tribunal notes however that Joboutlook indicates that a Retail Manager is typically paid $1,000 weekly before tax, and Payscale indicates the nominated occupation’s average salary for Perth is $50,025. The Tribunal raised this with the applicant who merely said he relied on the migration agent’s advice. However the Tribunal remains concerned that, if the position is genuinely that of a Retail Manager, the nominee will not be provided with the terms and conditions with respect to the base salary that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal also notes that the applicant has stated that the nominee has been working in the position full-time since late 2016. However based on the nominee’s 2018 PAYG payment summary, provided by the applicant, the nominee’s gross payments by the applicant in that financial year were only $34,112. This is significantly less than the nominated base salary. When this was raised with the applicant he initially indicated it was because the nominee had been away for a few months. When the Tribunal requested further particulars he acknowledged the nominee was away for only a month. This evidence suggests that the nominee was not paid in this month despite the employment agreement providing for paid leave. The applicant also indicated that while Crust agrees for the nominee to be the store manager he has not had the training. The Tribunal is not satisfied that this adequately explains why the nominee has been paid nearly $8,000 less that the nominated base salary, particularly given that the franchisor has stated in writing that he is satisfied the nominee has the skills to undertake the duties of a Crust store manager. The Tribunal is also concerned that the nominee has not been paid the nominated base salary because of the applicant’s financial difficulties. The applicant admitted at the hearing that the business is running at a loss and because of various issues, such as the payments he must make to Uber eats, it is struggling financially. While the Tribunal takes into account the fact that the business is still repaying the loan to ANZ, it gives weight to the applicant’s oral evidence that if the sales are down they might have to put the nominee on casual wages. This raises concerns, along with the applicant’s lack of adequate explanation as to why the nominee was paid only $34112 in the 2018 financial year, that the nominee will not be afforded entitlements such as paid leave. The Tribunal is of the view an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, employed on a full-time basis for at least two years, would be entitled to paid leave.
The Tribunal accepts that the applicant values the nominee’s contributions to the business and that the business benefits financially because of his skill at ordering supplies. It accepts that the RCB, on 11 October 2016, formed the view that the relevant requirements of r.5.19(4), including r.5.14(4)(e), are satisfied by the applicant. The Tribunal also takes into account all of the written evidence, including the representative’s submissions in which he implies that the terms provided meet the requirements of r.5.19(4)(e). Those submissions indicate the nominee will be paid various forms of leave. However the Tribunal has had the advantage of hearing the applicant’s oral evidence. Taking that evidence into account, along with everything else before it, the Tribunal is not satisfied the nominee will be provided the terms and conditions that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. It is concerned he will not be paid a base salary similar to those enjoyed by Retail Managers undertaking equivalent work in Perth. It is also concerned that the nominee may not be provided with paid leave. It is also concerned, based on the applicant’s oral evidence, that if the business continues to struggle financially the applicant may change the nominee’s employment to casual employment, casting some doubt on whether he will be employed on a full-time basis.
Overall the Tribunal is not satisfied 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.
Accordingly the requirements of r.5.19(4)(e) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Denise Connolly
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
(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)       both 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;
(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 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).

[2018] AATA 3479

28 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction