Good Food Langtree Pty Ltd ATF Goodfood Langtree Unit Trust (Migration)

[2021] AATA 3762

Good Food Langtree Pty Ltd ATF Goodfood Langtree Unit Trust (Migration) [2021] AATA 3762 (28 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Good Food Langtree Pty Ltd ATF Goodfood Langtree Unit Trust

CASE NUMBER:  1837133

HOME AFFAIRS REFERENCE(S):          BCC2017/2034051

MEMBER:Jane Bell

DATE:28 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 28 September 2021 at 6:11pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – tasks of position – position description and nominee’s qualifications, experience and performance in position – business growth and shortage of staff – director of applicant lives in Melbourne – labour market testing – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 December 2018 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).

2. The applicant applied for approval on 8 June 2017. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. 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 applicant’s evidence failed to demonstrate that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Migration Act 1958 (Cth) (the Act).

6. The applicant was represented in relation to the review by its registered migration agent.

7. 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

8. 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.

   The application is compliant: reg 5.19(4)(a)

9. 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.

10. On the basis of information in the Department’s file, the Tribunal is satisfied that the nomination was made on the approved online form, and that the relevant written certification has been provided as part of the application that it had not engaged in conduct that contravened s.245AR(1) of the Act. No application fee is payable as the application is seeking to meet the requirements of reg 5.19(4)(h)(ii).

11. The Tribunal is also satisfied on the evidence in the Department’s file that the application for approval identified a need to employ Mr Navjot Singh as a paid employee, to work in the position under the nominator’s direct control.

12. There is documentary evidence that the nominee is working under the nominator’s direct control, including employment contracts to work in the nominated position as a paid employee dated 8 May 2017 and 4 August 2021 between the nominator and the nominee, which are signed by both parties and states that the nominee’s position is full-time on a salary of $56,316 per annum and available for a minimum of 2 years from the grant of the nominee’s Regional Sponsored Migration Scheme (RSMS) permanent visa, as well as an Organisational Chart showing the nominee reporting directly to the director.

13. Furthermore, the Tribunal has a copy of a letter of support from the director dated 3 August 2021, stating that the director is operating 8 businesses across Victoria.  It states that the director lives in Melbourne with his family and young children and due to these family commitments he has employed the nominee as the Retail Manager to run one of his Mildura Subway businesses.  The letter confirms the need for a paid employee to work in the business as a Retail Manager, and states that the position plays an essential role in achieving the strategic and operational goals of the business.  

14. Therefore, the Tribunal is satisfied that there is sufficient evidence that the nomination  identifies a need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominator’s direct control.

15. 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)

16. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

17. The nominator operates 8 Subway businesses across Victoria.  All 8 businesses are run as separate legal entities under a franchise model.   4 of the businesses are located in Mildura, 2 in the central business district of Melbourne, 1 in Craigieburn and 1 in Notting Hill.   The businesses provide take away Subway sandwich services. The nomination application is with respect to the Subway Mildura City business which is located at 41A Langtree Avenue, Mildura, Victoria, a town in regional Australia. The nominator has been registered as a proprietary company and active since 12 August 2014.

18. The business employs 15 staff.  In addition to the nominee, 13 of the staff are sandwich artists (who are all Australian citizens) and 1 is a part-time supervisor (permanent resident).

19. In the financial year ending 2020 the business had a turnover of $822,983.96 up from $735,139.28 in the financial year ending 2019. 

20. The Tribunal has current information as evidence that the nominator is actively and lawfully operating a business in Australia and directly operates that business including:

    ·ASIC Certification of registration of company dated 12 August 2014;

    ·ASIC Historical and Current extract dated 14 September 2021 submitted by the applicant’s representative stating the business is registered and has been operating lawfully since 12 August 2014;

    ·ABN lookup extracted 14 September 2021 – business registered and active from  12 August 2014;

    ·Organisational Chart, which lists Vikramjeet Singh as the director and the nominee as the Retail Manager;

    ·Company Financial Report for the financial year ending 2020 with comparative figures for the previous financial year;

    ·Company Tax Return for the financial year ending 2020;

    ·Company Tax Return for the financial year ending 2019;

• Business Activity Statements for:

January 2020 – March 2020;
April 2020 – June 2020;
July 2020 – September 2020; and
October 2020 – December 2020;

• Nominee’s PAYG Payment Summary for 2019;

• Nominee’s PAYG Payment Summary for 2020; and

• Nominee’s PAYG Payment Summary for 2021.

1. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.

2. Accordingly, the requirement in reg 5.19(4)(b) is met.

   Position is not labour-hire: reg 5.19(4)(c)

3. 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. 

4. The nominator is running a retail Subway sandwich business. There is nothing in either the Department or Tribunal’s file to indicate that the nominator’s business activities relate to the hiring of labour for any unrelated business.

5. Therefore, the Tribunal is satisfied that the nominator’s business activities do not involve labour hire activities.

6. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

   Term of employment of the visa holder: reg 5.19(4)(d)

7. 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.

8. Mr Singh has been employed full time with the nominator since 2017 and has worked continuously in the business in the same role since this date and still works in the business as evidenced by his PAYG Payment Summaries for 2019, 2020 and 2021.  

9. The Tribunal has before it a copy of the latest Employment Agreement dated 4 August 2021 signed by the nominator and the nominee stating the salary to be $56,316 per annum plus 9.5% superannuation. It also states that the position is full-time and available for a minimum of a further 2 years from the date of the granting of the nominee’s RSMS visa and is not subject to any express exclusion of the possibility of renewal.

10. The Tribunal also has a copy of a statement detailing the Position Description for the nominated position of Retail Manager, which requires the performance of tasks that correspond to the tasks of a Retail Manager as appears in ANZSCO 142111.

11. The Tribunal has considered evidence contained in the Department’s file together with recent additional documentary evidence provided by the nominator to the Tribunal regarding its financial capacity including:

    ·The nominee’s Employment Agreement dated 4 August 2021, which states that the nominee will be employed for a minimum of a further 2 years from the date of the granting of the nominee’s RSMS visa and is not subject to any express exclusion of the possibility of renewal;

    ·    Position Description;

    ·    Organisational Chart;

    ·    Company Financial Report for the financial year ending 2020;

    ·    Company Tax Return for the financial year ending 2020;

    ·    Company Tax Return for the financial year ending 2019;

• Business Activity Statements for:

January 2020 – March 2020;
April 2020 – June 2020;
July 2020 – September 2020; and
October 2020 – December 2020;

• Nominee’s PAYG Payment Summary for 2019;

• Nominee’s PAYG Payment Summary for 2020; and

• Nominee’s PAYG Payment Summary for 2021.

1. After reviewing the above documents, particularly the 2019 and 2020 Profit and Loss Statements and Balance Sheets, the Tribunal is satisfied that the business is profitable. The business has traded successfully during the COVID-19 pandemic and has not been affected by the pandemic due to its regional location.  The sales from trading were $735,139.28 in 2019 and $822,983.96 in 2020. The net profit for the year after all expenses had been paid, including wages, superannuation and WorkCover, was $15,933.63 in 2019 and $25,287.77 in 2020. The Total Equity for the business was positive in 2019 and 2020. The Tribunal is further satisfied that the nominator’s wage payments clearly exceeded the nominee’s salary for the last 2 financial years as evidenced by the financial statements for the years ending 2019 and 2020. The ATO Business Activity Statements and the nominees PAYG payment summaries for 2019, 2020 and 2021 provided further evidence that the nominator has been paying the nominee’s full-time salary during his entire employment with the nominator.

2. The Tribunal notes that according to the nominees PAYG payment summaries for 2020 and 2021, that the nominee’ salary is higher than is indicated in the Employment Agreements with the nominee’s salary being $58,431 in 2020 and $56,316 in 2021.

3. The Tribunal accepts a letter of support from the nominator’s accountants, ZAB Business Advisers dated 5 August 2021, stating that it had reviewed the financial position of the business and confirming that the nominator had the financial capacity to sponsor the employee with a remuneration of $56,316 plus superannuation.

4. Based on the above documentary evidence provided on behalf of the nominator, the Tribunal finds that the nominator remains financially capable of continuing to employ the nominee in his full-time position on a salary of $56,316 per annum plus 9.5% superannuation for at least 2 years. 

1. Accordingly, the Tribunal finds that the nominee will be employed in the nominated position for at least 2 years fulltime.

2. Furthermore, based on the Tribunals review of the nominee’s latest Employment Agreement dated 4 August 2021, the Tribunal finds that the terms and conditions of the nominee’s employment do not and will not expressly exclude the possibility of extending the period of employment.

3. Accordingly, the requirement in reg 5.19(4)(d) is met.

   No less favourable terms and conditions of employment: reg 5.19(4)(e)

4. 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.

5. The Tribunal has evidence before it including the nominator’s Organisational Chart and is satisfied that there are no Australian citizens or permanent residents performing equivalent work as the nominee with the nominator.

6. The nominee’s Employment Agreement dated 4 August 2021, provides for a salary of $56,316 per annum plus 9.5% superannuation. The Tribunal has information before it, including market salary rates for Retail Managers and advertisements for comparable full-time jobs placed by other businesses as well as salary surveys. A Payscale salary survey states that the average salary for a Retail Manager in Australia is $53,430 as at 13 September 2020.  PayScale states that Retail Managers in Mildura, Victoria earn a median of $25.30 per hour. Other market research indicates that the average salary for a Retail Manager is $54,350 in Australia and that the average salary of a Retail Manager in a regional area is $25.50 per hour. The Tribunal is satisfied that the nominee’s salary is in accordance with contemporary market rates for a Retail Manager in a similar location. 

7. The Tribunal is satisfied that the nominee’s Employment Agreement dated 4 August 2021 has standard provisions relating to annual and sick leave and other terms and conditions of employment that are consistent with those in the Fair Work Act 2009 (Cth) and the National Employment Standards.

8. Given the above, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

9. Accordingly, the requirements of reg 5.19(4)(e) are met.

   No adverse information known to Immigration: reg 5.19(4)(f)

10. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or a 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.

11. The Tribunal has reviewed the Department’s records and has found nothing to indicate that there is any adverse information known to the Department about the nominator or a person  ‘associated with’ the nominator.

12. Accordingly, the requirements of reg 5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

13. 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.

14. The Tribunal has information from the Fair Work Ombudsman stating that there are no current records of investigations that have resulted in the application of an enforcement tool against the nominator. 

15. There is nothing in the Department’s records to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

16. The Tribunal is satisfied 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.

17. 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)

18. 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 (see legislative instrument IMMI 17/058), 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 the 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.

19. The applicant can choose to meet either reg 5.19(4)(h)(i) or reg 5.19(4)(h)(ii) above.

20. The Tribunal notes that the applicant sought to satisfy the requirements of the second dot point, namely reg 5.19(4)(h)(ii), at the time it made its nomination, on the basis that the position and the applicant’s business were located in a regional area.

21. The Tribunal has considered the criteria set out in reg 5.19(4)(h)(ii) below. All of the provisions must be met.

    Position located in regional Australia: regs 5.19(4)(h)(ii)(A) and (E)

22. The Tribunal is satisfied that the nominated position and the applicant’s business are located in regional Australia at 41A Langtree Avenue, Mildura VIC 3500 and that is the place specified in the nomination application.

23. Accordingly, the Tribunal finds that the nominated position and the business are located in regional Australia and therefore the requirements of regs 5.19(4)(h)(ii)(A) and (E) are met.

    Genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control: reg 5.19(4)(h)(ii)(B)

24. To address the requirement that there is a genuine need for the paid position under the nominator’s direct control, the applicant provided documentary evidence to the Tribunal about the business and the growth of the business.

25. The nominator, Goodfood Langtree Pty Ltd as trustee for Goodfood Langtree Unit Trust and trading as Subway Mildura City is a retail Subway sandwich business located at 41A Langtree Avenue, Mildura VIC 3500, an area in regional Australia. 

1. The Tribunal has a copy of a letter of support from the director of the business dated 3 August 2021, stating that the director is operating 8 businesses across Victoria.  It states that the director lives in Melbourne with his family and young children and due to these family commitments, he employed the nominee as the Retail Manager to run the Subway Mildura City business.  The letter confirms the ongoing need for a paid employee to work in the business as a Retail Manager and states that the position plays an essential role in achieving the strategic and operational goals of the business. 

2. The business is experiencing growth and a shortage of staff.  In the last financial year ending 2020 the business had a turnover of $822,983.96 up from $735,139.28 in the financial year ending 2019. 

3. The business employs 15 staff.  In addition to the nominee, 13 of the staff are sandwich artists (who are all Australian citizens) and 1 is a part-time supervisor (permanent resident).

4. The evidence of the nominator suggests that there is an ongoing need to employ the nominee as the business requires a Retail Manager to organise and control the day to day operations of the business which is growing and busy given it is operating 7 days a week.

5. The nominee has managed the Subway Mildura City store since 2017.  There is evidence that Mr Singh holds a Diploma of Business Administration and Diploma of Management qualifications along with relevant industry experience. Mr Singh has been trained and recognised as a manager and granted the award certificate by Subway. Furthermore, the Tribunal accepts that it is not possible to appoint someone as a Retail Manager in a Subway Store without training and completion of a formal certification from the Subway franchisee. Mr Singh has been living in Mildura for many years and is an active member of the community, is involved in the local cricket club and is captain of one of the cricket teams.

6. The nominator provided evidence that the nominee is very capable and reliable, and has extensive knowledge working as a Retail Manager. The nominee has relevant work experience and the confidence to manage the workload and expectations at a busy Subway business.

7. The organisational structure as seen in the Organisational Chart, confirms that the position continues to fit into the business activity and that the nominee is working under the direct control of the director of the nominator. There is no one else performing the same role in the business.

8. The Tribunal accepts the evidence that there is a general shortage of Retail Managers with the nominee’s skills and experience in regional Victoria and that Retail Managers are hard to attract to regional communities on a permanent basis, particularly given that Mildura is 542 kilometres and an approximate 6 hour drive from Melbourne.  

9. The Tribunal further accepts evidence outlining the efforts and expense incurred to recruit a Retail Manger via advertising in print and online media. There is evidence that there were few applicants and that none had the necessary experience and training and were not Subway certified.

10. The Tribunal accepts evidence from the nominator that the position of Retail Manager is vital to the continued success of the business.

11. Based on the evidence, including the Employment Agreement to work in the nominated position as a paid employee dated 4 August 2021 signed by the nominator and the nominee, a letter of support from the director dated 3 August 2021, the fact that the nominee has been employed in the position since 2017, and the Organisational Chart, which  shows that the nominee reports directly to the director of the nominator, the Tribunal is satisfied that the applicant has a genuine need for the paid position, and that the nominee is working under the applicant’s direct control.

12. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.

    The position cannot be filled by an Australian citizen or permanent resident who is living in the same local area: reg 5.19(4)(h)(ii)(C)

13. The Tribunal accepts evidence that the nominator advertised the job vacancy locally and on various recruitment websites as well as in the local newspaper prior to interviewing the nominee and had not been able to find a suitable candidate from the local labour market for the position. Few local applications were received following the advertising and those that did apply did not have any relevant skills. The business has difficulty attracting applicants due to the size and remoteness of Mildura.

14. The Tribunal accepts copies of job advertisements appearing in the local newspaper, the Sunraysia Daily and tax invoices for advertisements dated 23 July 2016 for $425.04,             6 August 2016 for $425.00, 11 March 2017 for $346.50 and $594.00 and that each advertisement ran for 2 weeks. The nominator received 2, 3 and 3 applications for each advertisement respectively, and interviewed 1, 2 and 2 applicants respectively from each advertisement.  None had relevant experience nor qualifications so were not suitable and none were hired. There is a recent tax invoice from Stride dated 31 March 2021 for advertising for $392.70.  No suitable applicants were identified from this advertisement. 

15. The job description in the advertisements is consistent with a Retail Manager role and the salary offered in the advertisements is market rate.

16. There is evidence of a letter of support from the director of the nominator dated 9 May 2017 stating that there have been genuine efforts to recruit experienced staff to fill the position of Retail Manager, however, he was unable to source a suitable local employee.

17. The nominator subsequently applied to the Swan Hill Rural City Council, P.O. Box 488, Swan Hill, Victoria 3585, which is a Regional Certifying Body (RCB), for a certificate that the nominated position could not be filled by an Australian employee. On 26 May 2017, the nominator received approval from the Swan Hill Rural City Council RCB.

18. Based on the above evidence that there were no suitable candidates arising from the  advertising campaign and labour market testing undertaken by the nominator, the efforts the nominator made to fill the role with an Australian citizen or permanent resident and the fact that the nominator’s effort to employ a Retail Manager in the area was unsuccessful, along with the fact that the nominated position could not be filled by an Australian employee was certified by the Swan Hill Rural City Council RCB on 26 May 2017, together with recent evidence that there has not been any change in the employment circumstances for Retail Managers in the regional area since 2017, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident living in the same local area.

19. Accordingly, the requirements of reg 5.19(4)(h)(ii)(C) are met.

    The tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument: reg 5.19(4)(h)(ii)(D)

20. On 14 December 2018, the Department refused the nomination application based on the fact that the nominator had not provided sufficient evidence to satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the applicant’s evidence failed to demonstrate that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing.

21. Since the Department’s decision, the nominator has provided evidence to the Tribunal that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing.

22. The nominated position duties, as listed by the nominator in the position description provided to the Tribunal are as follows:

    POSITION DESCRIPTION - Retail Manager

    Duties and Responsibilities of the Retail Manager:

    ·Maintain service standards and quality standards;

    ·Analyse and forecast daily, week and monthly sales figure in order to maximize profits;

    • Effective systems for cash handling and retail banking are in place, reviewing and
    • updating business processes as necessary;
    • Organize and implement sales promotional and any marketing activities in conjunction
    • with the operations and ensure that the setup is in line with operational policies and
    • successful;
    • Manage and monitor inventory levels and stock control;
    • Oversee the implementation of customer service standards;
    • Ensure customer satisfaction and efficient handling of complaints;
    • Recruit, train, supervise and evaluate all employees;
    • Manage and motivate the team to increase sales and ensure efficiency;
    • Ensuring cleanliness throughout the shop and compliance to Occupational Health and
    • Safety are achieved;

    Essential Skills

    • The employee must have a solid understanding of safe working applications in relation to
    • workplace occupational health and safety;

    ·Ability to work independently; and

    • Ability to prioritize and manage work load.  78948] Job Description

    Case Number: 183713/08/2021 02:27:18

    The ANZSCO unit group description for Retail Managers is as follows:

    142111 RETAIL MANAGER (GENERAL)

    Organises and controls the operations of a retail trading establishment.
    Skill Level: 2
    Specialisations:
    Fast Food Manager, Newsagent Retail, Bakery Manager

    Tasks 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.

23. The nominee holds a Diploma of Business Administration and Diploma of Management qualifications along with relevant industry experience. Mr Singh has been trained and recognised as a manager and granted the award certificate by Subway. Furthermore, the Tribunal accepts that it is not possible to appoint someone as a Retail Manager in a Subway Store without training and completion of a formal certification from the Subway franchisee. Mr Singh has been living in Mildura for many years and is an active member of the community, involved in the local cricket club and as captain of one of the cricket teams.

24. The director’s letter of support states that he runs 8 Subway businesses across Victoria and given he lives in Melbourne, it is impossible for him to manage the business in Mildura.  It states that the nominee is responsible for setting the overall direction and objectives of the business and that the nominee has ultimate responsibility for the decisions and management of the business. The nominee orders the stock from the suppliers on the most advantageous financial terms in order to maximise profitability and to ensure that the products reflect current market trends. The nominee has autonomy to make purchasing decisions himself, particularly given that the director of the business is based in Melbourne. The nominee implements policies to ensure that stock is rotated to adhere to use by dates and appropriate quantities of ingredients are ordered.

25. The nominee negotiates deals with suppliers, negotiating discounts for quick settlement, and negotiates for smaller and more frequent deliveries from suppliers to smooth out cash flow.   He prepares the budget for turnover and expenses on a quarterly and annual basis.  He analyses the actual and budgeted figures on a monthly basis to identify reasons for any variances and takes necessary measures.  The nominee budgets by forecasting all fixed expenses like salary, rent, insurance and any other known costs.  He recruits and provides training to new employees, he resolves performance problems of employees, he conducts a staff meeting every fortnight and he motivates and mentors the employees and complies with all legal occupational, health and safety requirements. A

26. The position description in the nomination demonstrates the tasks and required skill level are commensurate with the occupation of Retail Manager, which according to ANZSCO primarily involves organising and controlling the operations of the business. The level of decision making is very important.  The evidence confirms that the nominee is responsible for the high level and strategic decisions making aspects of the business such as budgeting, marketing, pricing, product mix, stock levels, service standards, formulating and implementing purchasing, and controlling the selection of the staff. These decision are not made by the director. product mix, e7:18

27. Based on the evidence, including the position description provided by the nominator to both the Tribunal and the Department, the Tribunal is satisfied that the tasks performed in the nominated position correspond to the tasks of the occupation specified in the ANZSCO occupation of a Retail Manager (ANZSCO 142111) and that it is a Skilled Level 2 occupation as per IMMI 17/058.

28. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) are met.

    The occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation: reg 5.19(4)(h)(ii)(DA)

29. The Tribunal is satisfied that the nominated occupation relates to the nominee specified in the nomination application. Furthermore, the Tribunal is satisfied that there are no additional specifications made in the relevant instrument with respect to the occupation to be performed in the position.

30. Accordingly, the requirements of reg 5.19(4)(h)(ii)(DA) are met.

    Regional Certifying Body advice about matters specified in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C): reg 5.19(4)(h)(ii)(F)

31. The Tribunal is satisfied by the certificate on the Tribunal’s file that the Swan Hill Rural City Council, which is a Regional Certifying Body certified on  26 May 2017 that there was a need for a paid employee in the nominated position, that it could not be filled by an Australian citizen or permanent resident living in the same local area, and that the terms and conditions of employment for the nominated position were no less favourable than those that would be or were being provided to an Australian employee performing equivalent work in the same workplace at the same location and that there has not been any change in the employment circumstances for Retail Managers in the regional area since 2017. 

32. Accordingly, the requirements of reg 5.19(4)(h)(ii)(F) are met.

33. Accordingly, the requirements of reg 5.19(4)(h) are met.

34. 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

35. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Jane Bell
    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).