Hemkau Pty Ltd as trustee for KPJ Unit Trust (Migration)
[2017] AATA 547
•4 April 2017
Hemkau Pty Ltd as trustee for KPJ Unit Trust (Migration) [2017] AATA 547 (4 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Hemkau Pty Ltd as trustee for KPJ Unit Trust
CASE NUMBER: 1601883
DIBP REFERENCE(S): BCC2015/1792412
MEMBER:Christopher Smolicz
DATE:4 April 2017
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 04 April 2017 at 11:39am
CATCHWORDS
Migration – Nomination – Direct Entry Nomination stream – Nominated occupation corresponds to a specified occupation – Retail Manager (General) – Located in regional Australia – Genuine need for position
LEGISLATION
Migration Regulations 1994, 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 29 January 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).
On 23 June 2015 the applicant applied for approval of a nomination for the position of Retail Manager (General) 142111. Mr Kushal Agarwal was identified as the nominee for the position.
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 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 task to be performed in the position did not correspond to the tasks of an occupation at the ANZSCO skill level of 1, 2, or 3.
As a consequence in a separate decision the Department refused Mr Agarwal subclass 187 visa application. The applicant and Mr Agarwal have applied to the Tribunal to review the Department’s decisions.
On 9 March 2017 the Tribunal conducted a combined hearing with the related file AAT ref. 1603928. Mr Ketan Patel gave evidence on behalf of the applicant. The Tribunal also received oral evidence from Mr Agarwal.
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
Mr Patel is a director of Hemkau Pty Ltd atf the KPJ Unit Trust trading as Dominos Golden Grove. Mr Patel said that he has a 51 per cent ownership interest in the business. The remainder of the business is owned by Mr Pratikkumary Patel (25%) and Mr Jigar Modi (24%). Both Mr Pratikkumary Patel and Mr Modi have other full time jobs and are not actively involved in the operations of the Dominos Golden Grove business.
Mr Patel said that initially Mr Moti was helping him run the business but subsequently left to work full-time as a quality assurance manager for Haigh’s Chocolates. Mr Pratikkumary Patel never had any direct involvement in the business and works as a security officer. Mr Patel said that when he first purchased the Dominos Golden Grove franchise he was working in the position of Manager however over time it became too much work for him carry out alone when combined with his other business interests.
Mr Patel said that since April 2015 he has been looking to invest in a second Dominos franchise but has not signed any agreement and to date nothing has eventuated.
In 2016 he became a part owner in a “Party Shop” which took up much of his time. He found it stressful balancing his work and life commitments and has withdrawn from the party shop business. He claims that due to family pressure he has not worked in the business since October 2016. Mr Patel said he requires a full-time Store Manager to manage the Dominos Golden Grove store on a daily basis.
Mr Agarwal is a citizen of India. He first arrived in Australia July 2008 as a Student visa holder. Since arriving in Australia he has completed a Master of Business Administration, Certificate IV in Accounting and Diploma of Accounting. He also has a Bachelor of Commerce from Loyola College in India.
In the period 2009 to August 2011 he commenced work at Domino’s Pizza franchise in NSW as driver, cashier and Assistant Manager. He subsequently commenced work at Domino’s Pizza franchise in Bankstown, NSW where he worked as a Store Manager until November 2012. In March 2013 he commenced working as Store Manager at the Domino’s Pizza franchise in Manly, NSW where he worked until February 2015. During this time he completed his Certificate IV in Accounting. In February 2015 Mr Agarwal moved to Adelaide and commenced a Diploma of Accounting. Mr Agarwal said that he has also completed the following in-house training provided by Domino’s Pizza:
· Pizza College level I and II
· Managing Training Level III in DOTI.
· He is employed as a Level III Store Manager
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.
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 finds that the application was lodged electronically using the e-lodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal is satisfied that the application identifies the need for the nominator to employ a paid employee in the position of Retail Manager and that the position is under the nominator’s direct control. Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. The Tribunal has had regard to the applicant’s financial documents which include: Profit and Loss statement, Business Activity Statements, PAYG Payment Summary statements, business bank statements and ASIC certificates of company registration. The Tribunal was also provided with correspondence from the applicant’s accountant confirming the turnover of business was $1,362,832 for the 2015-2016 financial year and the business has the financial capacity to employ a full-time Retail Manager. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
The Tribunal finds that the applicant is not involved in the provision of labour hire and consequently r.5.19(4)(c) is not relevant to the current nomination.
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 Mr Patel’s evidence and the new signed employment contract dated 16 March 2017. The Tribunal is satisfied that the nominee will be appointed for a period of a minimum of two years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(4)(d) is met.
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.
The Tribunal has had regard to the employment contract dated 16 March 2017 and Mr Agarwal’s payslips. The information provided to the Tribunal discloses that the Retail Manager position is a “Retail Food Employee Level III” (Level III) position.
The Tribunal is satisfied that the annual salary of $46,819 and hourly rate of $21.76 is consistent with the SDA Domino’s Pizza Agreement 2009 and the SAD Award 2017 which introduced changes to the minimum wages taking effect from 1 January 2017.
The Tribunal is satisfied that the terms and conditions of employment are not 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 that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. 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 that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia. Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position and genuine need for the position 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.
As stated above, the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to access the application against the criteria in r.5.19(4)(h)(ii) which requires that:
· 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 local resident, Australian citizen or permanent resident,
· the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
The position nominated by the applicant is referred to as a position for a Retail Manager (ANZSCO 142111). The Tribunal considered the job description as found in ANZSCO (The Australian and New Zealand Standard Classification of Occupations) for this position.
The Tribunal notes that for the purpose of the current assessment, ANZSCO is only a guide and the regulations in this context do not require a formal skills assessment. The Tribunal also notes that it is not always possible to find an exact match for a nominated position within the ANZSCO dictionary definitions. If a nominated position does not fall exactly within an ANZSCO occupation description the Tribunal must make an assessment on all the available evidence.
The ANZSCO job description of Retail Manager refers to an indicative skill level of 2 for such positions and refers to the positions as organising and controlling the operations of establishments which provide retail services. The Tribunal also considered the ANZSCO job description for a Retail Supervisor (ANZSCO 621511) for which ANZSCO shows a skill level of 4 and describes the overall activities of such a position as to “supervise and coordinate the activities of retail sales workers”.
At the time of application the business sought to employ a person who could undertake the following duties:
· Ensure high levels of customer service. Solving customer queries by taking prompt actions.
· Manage inventory levels and order stock when required
· Recruit, train and manage staff
· Monitor staff to ensure that food preparation is conducted according to food safety regulations
· Effectively marketing and promoting new products
· Drawing strategic plans to help grow the business
· Preparing the staff rosters as per availability and daily requirements of the store.
· Design and coordination of special onsite events as part of product launch, brand awareness and marketing techniques.
· Preparing and maintaining target customers and loyal customers in an attempt to grow the business as well as maintaining long healthy business relationships by offering exciting deals and cost effective orders.
· Select, assemble compose and lay out publicity material, information and statistics and calendars of events, posters, newspaper articles.
Mr Patel explained that each franchise store is subject to random auditing every three months by the franchisor. If a franchise does not pass audit on three occasions, the franchise agreement is terminated. Mr Agarwal as the Store Manager, he has sole responsibility with dealing with Domino’s auditors. Audit covers areas such as level of turnover, hygiene, OH&S, customer service and product quality. In support of this evidence the Tribunal was provided with the Food Safety and Hygiene (FSH) and Operation Evaluation audit reports which were completed by Mr Agarwal on behalf of the Golden Grove Domino’s franchise.
The Tribunal noted that according to the Domino’s Franchise agreement the franchisor retained control over promotions, advertising, product mix and pricing. Mr Patel agreed that much of the promotions and advertising were driven by the franchisor, however it was submitted that this did not preclude the franchisee from engaging and initiating their own local promotions and advertising. By way of example the Tribunal was provided with emails which demonstrate Mr Agarwal initiated marketing promotions relevant to school fundraising ideas, initiated contact with local real estate agents to give complementary meals for families moving into the local area, created vouchers for the employees of the local Golden Grove Shopping Centre as well as deals for emergency service, care homes and local hotels. The Tribunal is satisfied that despite the limits placed on the business by the Franchise Agreement the nominee is engaging, formulating and implementing marketing strategies to promote the business at a local level.
It was submitted that when a customer made complaints about the store, it is the nominee who responds personally. In support of the Tribunal was provided with emails relevant to the nominee dealing with customers, resolving complaints and offering complimentary meals.
The Tribunal was provided with various business records relevant to the daily operations of the Domino’s Golden Grove store which support the finding that the Mr Agarwal’s tasks, duties and responsibilities are consistent with that of a Retail Manager. For example, the Tribunal was provided with emails sent by Mr Patel to suppliers and Domino’s payroll appointing Mr Agarwal as a Store Manager. The Tribunal was provided with examples of “Interval Count Sheets” and emails with suppliers confirming that Mr Agarwal undertakes weekly stocktakes and orders stock. The Tribunal was provided with weekly time sheets prepared by Mr Agarwal and accepts that Mr Agarwal is responsible for recruitment of all new staff, which includes, placing advertisements, interviewing, hiring and training contracts.
One of the issues raised by the delegate was the terms of the Domino’s Franchise Agreement, which states that nominator (Mr Patel) must directly supervise the store on a daily basis in order to comply with the Franchise Agreement (cl.16.9). At the hearing, it was submitted that the Franchise Agreement also states that the respective parties “may substitute a designated individual with the prior written approval of the Master Franchisee”. In support of this evidence, the Tribunal was provided with correspondence from the franchisor confirming that Mr Agarwal has been working as a Store Manager since 1 October 2016 at Domino’s Golden Grove. The correspondence confirms Mr Agarwal manages the whole store operations as a Manager and makes decisions for his franchisee in the capacity of Store Manager.
The Tribunal has had regard to the size and scope of the Domino’s Golden Grove franchise store and the length of the visa applicant’s employment and his qualifications. The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
It was submitted that the position was advertised on the Seek website on 10 July 2015 and five resumes were received. Two applicants were shortlisted and both were interviewed, however the applicant’s did not have any relevant or appropriate qualifications for the managerial position. It was also submitted that other casual employees working in the business had study commitments and were unable to take up a full time position. The Tribunal accepts that Mr Agarwal has extensive experience working in Dominos and relevant qualifications to work in the position of Store Manager. The Tribunal is satisfied the position cannot be filled by a local resident Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Having regard to all the evidence, the Tribunal accepts that the position has a great deal of responsibility and performs an important role in the applicant’s business at a skill level that is greater than that of Retail Supervisor. The Tribunal is satisfied that the position located in Golden Grove, South Australia can properly be classified as a position for a Retail Manager, ANZSCO Skill Level 2. The Tribunal therefore finds that the nomination does satisfy r.5.19(4)(h)(ii)(D) of the Regulations.
The Tribunal has had regard to Form 1404 issued by a RCB located on the Department’s file and is satisfied that Skilled Migration WA has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
Accordingly 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.
Christopher Smolicz
MemberATTACHMENT - 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;
(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 at a skill level of ANZSCO skill level 1, 2 or 3;
(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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Standing
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