DYNASTY CORPORATION PTY LTD (Migration)

DYNASTY CORPORATION PTY LTD (Migration) [2021] AATA 2470 (29 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  DYNASTY CORPORATION PTY LTD
CASE NUMBER:  1821993
HOME AFFAIRS REFERENCE(S):          BCC2016/2728855
MEMBER:Phoebe Dunn
DATE:29 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 29 June 2021 at 5:23pm
CATCHWORDS
MIGRATION – approval of a nomination – position of Service Manager – genuine need for the employment – financial capacity to employ the nominee for at least two years – examples of customer service provided – updated financial information – terms and conditions of employment no less favourable – relevant qualifications – nominee helps train other staff – business focus on contract customers – labour market testing – decision under review set aside
LEGISLATION
Fair Work Act
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37
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 12 July 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 17 August 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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)(a)(i) of the Regulations because the delegate was not satisfied that the applicant had established there was a need to employ a paid employee full time in the nominated position under the nominator’s direct control. Specifically, the delegate was not satisfied that the nominee would be undertaking the tasks of the nominated position full-time.
The applicant, represented by owner and manager Mr Gavin Evans, appeared before the Tribunal by video conference on 9 June 2021 to give evidence and present arguments.
The hearing was held during the COVID-19 pandemic and the Tribunal exercised its discretion to hold the hearing by video. The Tribunal determined it was reasonable to hold a hearing by video, 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent, Mr Ian Lattimore. Mr Lattimore attended the hearing.
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 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 hearing, Mr Evans gave detailed evidence about the nature of the business and the nominee’s role with the business. Mr Evans stated that he had owned and operated a dry cleaning and laundry business in Perth for over a decade. He stated that at the time that the nominee commenced employment with the business around 50% of their work was contract based servicing the hotel market, with the remainder focused on the retail sector. More recently, he noted that he had transitioned the business away from the contract market to focus on the high-end retail market, targeting exclusive brands such as Louis Vuitton and Channel and their customers. He stated that they still service corporate contracts, but the business is now more focused on retail.
Mr Evans stated that when he first recruited the nominee, she commenced as a part-time casual laundry presser while she was studying, then moved into the Service Manager role approximately four years ago. He stated that he selected the nominee for the role as she had a good understanding of the industry which he considered essential to servicing the large contracts as she had already been working for the business for a few years and had the relevant qualifications to undertake the position. He stated that he has always found it difficult to attract and retain suitable employees to the business who had the right qualifications and experience to undertake the role and noted that the COVID-19 global pandemic had made it more difficult than ever to secure staff.
At the hearing, the Tribunal stated it had concerns about the applicant’s capacity to demonstrate meeting a number of the requirements in r.5.19(4) noting that the applicant must meet all the requirements for the nomination to be approved. The Tribunal requested that the applicant provide post hearing submissions addressing the requirements, including establishing that there is still a genuine need for a Service Manager and that the nominee will be working full-time in the nominated position for at least two years. The applicant provided the following submissions and information post hearing:
a.The nominee’s payslips for the period from 4 January 2021 to 16 June 2021;
b.Payroll activity summary for FY2020, which shows that the nominee was paid $56,470.29;
c.Payroll activity summary for FY2021, which shows that the nominee has been paid $46,111.93 to 15 June 2021;
d.Letter of support dated 21 June 2021 from Grant Butler, the General Manager of BrewHub Australia, attesting to the applicant being their preferred supplier of dry cleaning services and having regular dealings with the nominee in her capacity as Customer Service Manager for over four years;
e.Letter of support dated 18 June 2021 from Sonia Lau, Store Manager of Salvatore Ferragamo, Perth, attesting to the applicant being their preferred supplier of dry cleaning services and having regular dealings with the nominee in her capacity as Customer Service Manager for several years;
f.Genuine need statement and submission addressing capacity to fill the nominated position with a locally sourced applicant;
g.Draft financial statements for FY2020 showing a loss of $33,964.19 with a positive equity of $111,319; and
h.A range of emails demonstrating the nominee working in the role of Service Manager across a range of dates and customers, including:
i.Chain 1: Christine liaising with a corporate client (Western Haematology and Oncology Clinics) regarding delivery times. She discussed roster constraints (staff management and hours) and offers alternative times (working with client to manage expectations);
ii.Chain 2: Christine responding to a client who has a concern regarding communication from a staff member. Christine is managing staff who are providing customer service;
iii.Chain 3: Christine advising a potential customer of the risks involved in the proposed cleaning. Christine is maintaining sound customer relations by ensuring that the performance of the service (the dry cleaning of operatic costume) may not result in the outcome. She affirms the company’s customer service policy of waiting for client confirmation before proceeding with the cleaning;
iv.Chain 4: Christine explains to customer that she is unable to confirm if a stain can be removed. She liaises with other organisational units (dry cleaning specialist) to gather information before communicating with the customer (managing the customer’s expectation of the service being provided/purchased).
v.Chain 5: Christine received feedback from corporate client as to packaging of items. She makes a change to improve the service, ensuring that this client receives their dry-cleaned goods in poly packaging.
The application is compliant: r.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). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal has reviewed the documentation before it and is satisfied that the application was made on the approved form and was accompanied by the relevant s.245AR(1) certification and application fee. The application identifies the nominee, Ms Christine Sakala, in the nominated position of Service Manager (ANZSCO 149212).
The determinative issue in this case is whether the applicant has satisfied the requirement to establish that there is a need for the nominator to employ a paid employee to work in the nominated position under the nominator’s direct control. At first instance the delegate found that the applicant had failed to identify the need for the nominated position.
On review the Tribunal has received updated submissions and supporting documentation and taken oral evidence on this issue at the hearing. In particular, the Tribunal notes Mr Evans’ oral evidence at the hearing regarding the importance of the nominated position to continue to support, stabilise and grow the business following the impact of COVID-19 and to continue to ensure exemplary customer service in the context of their strategy to become the preferred supplier to the high-end retail clothing market. The Tribunal notes and accepts the applicant’s submissions that the nominee is a critical member of the business with an in-depth understanding of its operations and that Mr Evans is reliant on the nominee to undertake the Service Manager role to facilitate him seeking and securing new customers and to enable him to focus on his other business interests. The Tribunal notes the evidence before it of the nominee undertaking the role as Service Manager, including evidence of the nominee managing staff, handling customer complaints, establishing and implementing customer services policies and managing the implementation of new online customer service platforms.
The Tribunal has carefully considered the evidence before it and is satisfied that the applicant has identified that there is a need for a paid employee in the nominated position of Service Manager under the applicant’s direct control.
Accordingly, the requirement in r.5.19(4)(a)(i) is met.
Nominator is actively and lawfully operating a business in Australia: r.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 to the Tribunal extensive documentation evidencing that the applicant is actively, lawfully and directly operating a business in Australia. This includes an ASIC current and historical extract, recent financial statements from FY2018 to FY2020 (draft), payroll summaries for FY2019 and FY2020 and recent business activity statements (BAS) from July 2019 to June 2020. Having regard to this documentation, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.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.
The Tribunal has had regard to the nominee’s first Contract of Employment dated 29 July 2014 and the updated employment agreement dated 4 February 2021 (signed and dated by the nominator and the nominee) and is satisfied that the nominee has been and will continue to be employed directly by the business in the nominated position.
There is no evidence before the Tribunal to suggest that the nominee will be on‑hired to any unrelated business.
Accordingly, the requirement in r.5.19(4)(c) is met.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has had regard to the nominee’s first Contract of Employment dated 29 July 2014 and the updated employment agreement dated 4 February 2021 (signed and dated by the nominator and the nominee) which provides for employment in the nominated position for at least two years with no express exclusion of an extension. The Tribunal notes Mr Evans’ oral evidence at the hearing about his desire to retain the nominee for as long as possible, given her length of experience in the role, her performance to date and the difficulties of attracting and retaining suitably qualified staff, exacerbated by the COVID-19 pandemic.
At the hearing, the Tribunal explored the financial capacity of the business to employ the nominee for at least two years full time, noting the impact of the COVID-19 pandemic and that the FY2019 financial statements showed that the business had made a loss in FY2019 of $25,211 while showing retained earnings of $20,283. Mr Evans stated that while the business had been impacted by the COVID-19 pandemic it had bounced back to close to pre-COVID levels as a result of its online presence and its shift away from servicing hotel laundry contracts to providing dry cleaning services for the high-end fashion market. Mr Evans stated that the business had always been able to pay its bills as they fall due, is not behind with any creditors and is loan free. Mr Evans also noted his other business interests which could be used to support the business if required. Mr Evans stated that the draft FY2020 financial statements were in the process of being finalised by the accountants for the business and would provide these to the Tribunal in post hearing submissions.
In considering the financial capacity of the business the Tribunal has had regard to a letter from the applicant’s accountant which attests to the capacity of the business to continue to employ the nominee full time for at least the next two years and to the financial stability of the business. The Tribunal has also had regard to the draft FY2020 financial statements provided to the Tribunal together with payroll summaries for FY2019, FY2020 and to mid-June FY2021. While the draft financial statements for FY2020 show that the business recorded a loss of $33,964.19 it has minimal liabilities and positive equity of $11,319. The Tribunal also observes that the business has been able to support the employment of the nominee for over six years together with other staff members and continues to do so. Having regard to the accountant’s letter and the financial information before it, the Tribunal is persuaded that the evidence before it shows that the business has the capacity to continue to employ the nominee full-time for at least two years.
On the basis of the information before it, the Tribunal finds that the nominee will be employed in the nominated position for at least two years full time on terms and conditions which do not expressly exclude the possibility of an extension. Accordingly, the requirements in r.5.19(4)(d) are met.
No less favourable terms and conditions 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.
There is currently no Australian citizen or permanent resident performing equivalent work as the nominee in that same workplace at the same location. In written submissions and oral evidence at the hearing, Mr Evans stated that he paid the nominee above award rates (as set out in the Dry Cleaning and Laundry Industry Award 2010) and also paid her an executive bonus reflecting her role in the business. He stated that as a consequence of the COVID-19 pandemic, salaries and bonuses had been impacted but that he would be looking to reinstate the bonus structure as the market improved. He noted that the bonus structure was his way of attracting and retaining employees, noting the persistent difficulty he has experienced in attracting and retaining staff across the board. He stated that significant labour shortages were being experienced by members of the Dry Cleaning Industry Association across Australia.
The Tribunal observes that the Award was updated in 2020 and relates to the work undertaken by dry cleaning and laundry staff whose roles involve the process of dry cleaning and laundry. As such the Tribunal does not consider it directly relevant to the nominee’s role, notwithstanding that the applicant’s salary is consistent with that Award.
Evidence before the Tribunal shows that the nominee was paid $52,834 in FY2016, $55,596 in FY2017, $56,470.29 in FY2020 and $46,111.93 to 15 June 2021. The nominee’s first contract of employment in the nominated position provided for a base salary of $53,900, with the most recent contract reflecting a lower base salary at $47,600. The nominee’s current and former contracts of employment are in accordance with the national employment standards and the Fair Work Act 2009.
Searches of Payscale.com, Seek.com and Indeed.com undertaken by the Tribunal show that the salary for a Service Manager in Australia ranges from $45,000 to $130,000 with an average salary of $64,969. This puts the applicant’s current salary as at 15 June 2021 at the lower end of the range, noting that the applicant’s salary in FY2020 was closer to the average salary. The Tribunal accepts that the COVID-19 pandemic has affected the applicant’s current salary and has considered Mr Evans’ oral evidence that he will be increasing the applicant’s salary and reinstating the bonus system as the market improves.
The Tribunal has carefully considered the information before it and is satisfied that the terms and conditions of employment will be no less favourable than those that 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 met.
No adverse information known to Immigration: r.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 rr.1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is adverse information known to Immigration about the applicant or an associated person, which is not reasonable to disregard.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.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 indicate that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations where it operates a business.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)
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 instrument, 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.
The position and business are located in Perth, Western Australia, which is classified as ‘regional Australia’ for the purposes of this provision (Schedule B, IMMI 16/045). Accordingly, the requirements of r.5.19(4)(h)(ii)(A) and (E) are met.
In an undated written submission provided to the Tribunal on 4 February 2021, the applicant has sought to establish there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control. The applicant states that the business is a large dry cleaning business, servicing corporate customers which requires a dedicated Service Manager. The applicant states that the owner and manager of the business focuses on promoting and growing the business, including attending trade events, and requires the services of a dedicated Service Manager to ensure service levels are maintained, employees are being trained and that service level agreements in all contracts are being fulfilled. The applicant states that:
By having a reliable, experienced and professional Service Manager in place, the business can meet all of its obligations and maintain the highest service standards.
The applicant has provided evidence of the size of the business, noting that the professionally developed website, Facebook page and YouTube account demonstrate the size and professional nature of the business and is evidence of the genuine need for a Service Manager. The applicant argues that the Service Manager is required to support continued growth and maintain standards and performance, which in turn will facilitate the business providing more employment opportunities. The applicant states that the involvement of the business owner and manager on the board of the DryCeaning Industry Association and the Food Fibre and Timber Industries Training council is further evidence that the business is a ‘professional and well-run business’.
In an updated submission dated 2 June 2021, the applicant continues to maintain the need for a Service Manager, emphasising the nature of the business as a professionally run operation servicing approximately 40 high-end corporate clients and running a delivery service for corporate clients, as well as servicing retail customers with general dry cleaning and tailoring needs. The applicant states that the nominee deals directly with the corporate clients, managing the corporate contracts, handling enquiries and dealing with service issues and complaints. The applicant states that the nominee helps to train other staff and is a critical member of the team. The applicant notes that he relies on the nominee to manage this critical role so that he can focus on business development and his other pursuits. The applicant states that the nominee ‘plays a major part in maintaining Dynasty’s reputation, devising and executing policies related to client services and account management, and thus ensuring that major corporate clients remain satisfied with the service provided’.
In its written submission, the applicant notes that the business has recently moved into the deluxe and online markets (away from hotel valet and uniform market) and ‘high value corporate contracts’. This required her to develop policies relevant to the online environment, liaise with consultants and software developers, to oversee the development of the website and continue to ensure a ‘seamless service’. The applicant notes that they are bound by service contracts as opposed to only pay-as-you-go dry cleaning services, being the ‘major point of difference between us and other businesses operating in this space’. The applicant identifies the premium services they offer, including wedding dress cleaning and preservation, leather and suede cleaning, alterations and invisible mending as further evidence of the need for a dedicated Service Manager to attend to these customers. The applicant submits that the nominee is responsible for developing policies and procedures and overseeing their roll-out and notes that as a consequence of the COVID-19 pandemic, the nominee developed, revised and implemented a range of procedures and protocols, including COVID-19 specific service procedures, and trained staff on those procedures.
In oral evidence at the hearing, Mr Evans emphasised the distinguishing features of the business, servicing a large number of corporate contracts as well as the high-end exclusive retail fashion market, along with delivering premium services such as wedding dress preservation. He stated that the business had a genuine need for a dedicated Service Manager to manage other service staff, attend to these costumers and ensure customer satisfaction rates are maintained and had experience in the dry cleaning industry. He stated that the nominee had extensive experience in the dry cleaning industry, having worked for him for over 6 years. He stated that her knowledge of the dry cleaning process together with her qualifications and experience as Service Manager at the business made her an invaluable asset. He stated that their existing customer base deal directly with the nominee in her role as Service Manager and he did not know how the business could continue to operate without a dedicated Service Manager. In post hearing submissions, the applicant has stated that a Service Manager plays a ‘crucial role in the operation of any business, particularly enterprises where account retention is the key’.
The Tribunal has carefully considered the information before it and is persuaded that there is a genuine need for the business to employ a paid employee to work in the position under the applicant’s direct control. The Tribunal notes, in particular, the specific focus of the business on contract customers and the high-end, exclusive fashion market, and is persuaded that the business has a genuine need for an employee to undertake the role of Service Manager to attend to these customers, maintain service standards and regulation and support business growth and development. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(B) is met.
The applicant has provided evidence of the attempts to secure a Service Manager for the business from the local labour market who is an Australian citizen or permanent resident. The applicant has also provided details of labour market testing undertaken by the applicant prior to lodging the application, together with copies of Gumtree advertisements placed during March 2016. At the time of application, the applicant stated that they received eight applications, none of whom had the required skills or qualification to fill the role. On review, Mr Evans has stated that he was unable to fill the position prior to lodgement of the application with an Australian citizen or permanent resident in the same location as the business and continues to be unable to fill the position with an Australian citizen or permanent resident. Mr Evans has stated that since the COVID-19 pandemic, the business is still unable to identify a local candidate, emphasising the significant skills shortages being experienced across the state.
The applicant stated in a written submission dated 2 June 2021 that it is ‘incredibly difficult to recruit and retain employees with specialist industry knowledge and the skills and experience to work as a Service Manager’ and this was emphasised by Mr Evans at the hearing. Mr Evans focused on the specific skills and knowledge required to operate in this role in the dry cleaning industry, with reference to his industry knowledge from over 30 years industry experience including as President of the Dry Cleaning Industry Association. Mr Evans noted that the loss of the nominee to the business would be ‘devastating’ particularly at this critical juncture as the business works through the global pandemic and grows its online operations.
In post-hearing submissions the applicant has stated that Perth is experiencing significant labour shortages at present, noting that on 21 June 2021, a search of Seek.com shows there are 258 Customer Service Manager vacancies in Australia, with 29 in Perth and 201 Service Manager vacancies in Perth. The applicant provided evidence of the results of those searches, together with various recent media articles from May and June 2021 detailing the extent of labour shortages across Australia.
Based on the applicant’s submissions and the evidence before it, the Tribunal is persuaded that the applicant has made attempts to fill the position with an Australian citizen or permanent resident living in the same local area to no avail. Accordingly, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the business. As such, the Tribunal is satisfied that r.5.19(4)(h)(ii)(C) is met.
In a written submission dated 2 June 2021, the applicant has sought to demonstrate that the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument, being the tasks of a Service Manager (ANZSCO 149212). The applicant argues that the business is of the size and nature that requires the services of a Services Manager and that the nominated position involves a high level of responsibility, necessitating the skills at the level of a Service Manager as opposed to a lower level role, such as customer service officer. The applicant attests that the nominee has ‘overarching responsibility for planning and reviewing customer service procedures and after-sales procedures and maintaining customer relations (client account service delivery)’.
ANZSCO states that Customer Service Managers plan, administer and review customer services and after-sales services, and maintain sound customer relations, at Skill Level 2 with the following relevant tasks:
·developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided;
·providing direction and feedback to team members and assisting with recruitment;
·managing, motivating and developing staff providing customer services;
·planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided; and
·liaising with other organisational units, service agents and customers to identify and respond to customer expectations.
The applicant has listed the following ‘day to day’ tasks in the most recent contract of employment dated 4 February 2021 for the nominee’s role:
·Developing and reviewing service policies, programs and procedures concerning services provided;
·Advertising for new staff, conducting interviews and performing new employee inductions;
·Contracting casual employees during busy periods such as Christmas and 'wedding season';
·Managing and developing service staff;
·Delivering service training to employees and co-ordinating external training if required;
·Overseeing day-to-day operations, supervising employees during the garment identification process and assembly of customer orders;
·Processing and control customer dockets, tracking, and invoicing;
·Scheduling machinery maintenance and co-ordinating with emergency repairs, emergency plumbing call-outs etc;
·Marketing activities - upkeep of Facebook page, responding to reviews;
·Ensuring all employees adhere to company policies and OH&S standards and requirements;
·Ordering employee uniforms and PPE;
·Developing COVID policies in coordination with Director;
·Ordering supplies and checking deliveries for quality and quantity of goods received;
·Liaising with Production Manager as required;
·Processing and following up complaints and claims from customers;
·Deciding on suitable compensation to be issued to customers in the event that a mistake is made by any employee of Dynasty Drycleaners;
·Monitoring sales performance and ensuring goals are met;
·Holding regular staff meetings;
·Motivating and encouraging employees;
·Formulating pricing policies with General Manager;
·Meet with retailers and product representatives;
·Recommend new cleaning products and promotions to General Manager;
·Keep records pertaining to purchases, sales and requisitions;
·Preparing sales and inventory reports for senior managers;
·Prepare merchandise displays and in-store seasonal promotions;
·Debtors and Creditors data input for company financials;
·Bank reconciliations.
At first instance, the delegate had regard to evidence before it that the nominee was undertaking a range of roles in the business and considered that the nominee could not be undertaking the tasks of a Service Manager full time. The delegate also considered that the nominee’s role was ‘policy executing’ as opposed to ‘policy making’ and as such determined that the nominee was not undertaking the higher level tasks associated with the nominated position.
In a written submission, the applicant addressed the delegate’s findings as follows:
When we say the nominee executes policy, what we mean is she oversees the rollout of policies she has developed – e.g. training employees, reviewing policies, fine-tuning policies and service KPIs. As an example, we have had to revise our policies and procedures as a result of the Covid-19 pandemic.
We submit that this is a position of authority within the business. There is simply no way the drycleaning company owner can undertake these tasks, run two businesses, attend frequent industry events, oversee the company’s online presence and drive growth, whilst looking after this part of the business.
We submit that the nominee has overarching responsibility for planning and reviewing customer services procedures and after-sales procedures and maintaining customer relations (client account service delivery).
The role and responsibilities of the nominee were discussed at length at the hearing. The Tribunal noted that the nominee’s list of tasks set out in the most recent contract covered a range of activities that appeared to go beyond the tasks of a Customer Service Manager. The Tribunal noted that it appeared from the information before it that the nominee was undertaking a range of general management tasks in addition to tasks associated with customer service.
Mr Evans stated that he considered that the considerable majority of the nominee’s time was spent on tasks associated with being a Service Manager. He noted that as a consequence of the COVID-19 pandemic, all staff were contributing to the operation of the business in a variety of ways to support the continuation of operations and service during this difficult period. He stated that the nominee continues to have responsibility for managing other personnel in the service team and would continue to perform that critical function as the market improves and more staff are brought back on board. He stated that she has also been assisting with accounts payable and receivable and other financial reporting during this period, but that they had recently shifted to MYOB and that from 1 July 2021 this task would be undertaken by their accountants.
At the hearing, Mr Evans rejected the delegate’s conclusion that the nominee’s role was policy executing as opposed to policy making, noting the nominee’s significant contribution to the development and implementation of new policies relating to the business’s online services and the COVID-19 pandemic as specific examples of the nominee performing the higher level tasks associated with a manager level role. He noted that the nominee worked independently, dealing directly with clients, customers and business consultants. He stated that in relation to the online delivery service, the nominee worked directly with the software writers to ensure that the online platform would meet contracted client service performance metrics.
At the hearing, Mr Evans acknowledged that as a consequence of the impact of the global pandemic, the applicant’s hours were reduced for a period of time. He stated that since then, business had bounced back to close to the levels they were prior to the pandemic and that he was confident that the business would continue to grow and require the services of a full-time Service Manager. He noted that he was reliant on the nominee to support the business bouncing back from the pandemic and that he considered the role of Service Manager to be critical to the success of the business moving forward. Mr Evans noted that the nominee has a Bachelor of Commerce from Murdoch University and over six years’ experience in the Dry Cleaning Industry, with the majority spent undertaking the role of Service Manager.
In post hearing submissions, the applicant has provided evidence of the nominee undertaking the tasks of the Service Manager. The applicant has also provided letters of reference from contracted customers attesting to their dealings with the nominee in her capacity as Service Manager.
Based on the documentary evidence before it and the applicant’s oral and written submissions, the Tribunal is satisfied that the tasks and duties of the nominated position accord to the roles and duties of a Service Manager as set out in ANZSCO. The Tribunal is also satisfied that the nominee has the skills to undertake the nominated position, based on her qualifications and experience, and has been working in the nominated position undertaking these tasks. Accordingly, the Tribunal is satisfied that r.5.19(4)(h)(ii)(D) is met.
The applicant has provided a copy of the form 1404 Regional Certifying Body (RCB) advice signed and dated 20 May 2016, attesting that it is satisfied that there is a need for the position, the position can’t be filled by an Australian citizen or permanent resident living in the same local area and the terms and conditions of employment are no less favourable than those that would apply if there were an Australian citizen or permanent resident available to fill this role. The delegate did not accept this advice as sufficient on the basis of concerns that the applicant had failed to identify a need to employ a paid employee to work in the nominated position under the nominator’s direct control. The Tribunal notes that it has the benefit of additional documentation that was not before the original decision maker and has been persuaded on the basis of that evidence that there continues to be such a need. Accordingly, on the basis of the RCB advice and the documentary evidence before it, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.

As such, the Tribunal finds that the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Phoebe Dunn
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       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).

[2021] AATA 2470

29 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction