J PARMAR & SONS PTY LTD (Migration)

J PARMAR & SONS PTY LTD (Migration) [2017] AATA 1600 (13 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  J PARMAR & SONS PTY LTD
CASE NUMBER:  1616106
DIBP REFERENCE(S):  BCC2015/3886301
MEMBER:Stavros Georgiadis
DATE:13 September 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 13 September 2017 at 11:39am

CATCHWORDS
Migration – Nomination – Regional Sponsored Migration Scheme – Direct Entry Nomination stream – Regional Certifying Body – Department of State Government SA – Retail Store Manager – Genuine need for a paid employee in the nominated position – Position cannot be filled by an Australian citizen/permanent resident living in the same local area – Evidence provided

LEGISLATION
Migration Regulations 1994, r.2.57, r 5.19, r.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 Immigration on 20 September 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 15 December 2015. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii) of the Regulations as the delegate considered that the tasks to be performed by the nominee did not correspond with the tasks of the nominated occupation of Retail (Store) Manager (ANZSCO 142111). The delegate considered the tasks were more akin to those of a Retail Supervisor.
Mr Ranjeet Parmar, Director of the nominating business, appeared before the Tribunal on behalf of J Parmar & Sons Pty Ltd on 7 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee for the position, Mr Gurpreet Singh. The Tribunal hearing was conducted as a combined hearing of the related matters, 161606 and 1617963. The applicants were represented in relation to the review by their registered migration agent.
The applicant was represented in relation to the review by its registered migration agent.
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.
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 applicant’s business is a seven-day per week pizza restaurant operating as Pizza Hut, Para Vista in South Australia. Mr Parmar is the sole Director of J Parmar & Sons Pty Ltd. The business acts as a franchise of two Pizza Hut stores in South Australia being Pizza Hut Para Vista (this application) and Pizza Hut Gawler, which has been the subject of a successful application for a nominated position. The Director of the business is also engaged in other businesses including a pizza restaurant in Victoria and a part-time driving instructor school. He is a qualified driving instructor and has continued to undertake driving instruction duties, notwithstanding his involvement in the pizza restaurants. He claims that as a result, the time available for him to be directly engaged in the pizza business is substantially reduced.
The oral evidence and submissions before the Tribunal are that with three businesses and other interests it is not possible for Mr Parmar to operate all three stores and his other business interests. He therefore requires the appointment of a store manager to operate and manage the Para Vista Pizza Hut store, which is the subject of the present nomination of an occupation of Retail (Store) Manager. At the hearing, the Tribunal carefully questioned both the Director of the business and Mr Gurpreet Singh, the person occupying the position of manager presently, as to the duties undertaken and the nature and hours of work.
The Tribunal accepts that the nominee is engaged in the business at least five days per week and on occasions, six days per week, depending on how busy the store is. Although there is a part-time retail supervisor (who is the Director’s brother), the Tribunal notes this person only works a maximum of 20 hours per week as he has other business and agricultural interests which he pursues. The Tribunal accepts the applicant’s evidence that the only management position in the store is that of the nominated position that Mr Singh presently occupies. The oral evidence before the Tribunal is that Mr Singh commenced part-time work with the Para Vista Pizza Hut store in May 2015 and, since December 2015, has occupied the management position of full-time Retail (Store) Manager.
The Tribunal was provided with financial statements (including recent BAS and the 2016 and 2017 financial year tax returns) showing substantial growth since the business was purchased by the present operator around March 2015. For the last four months of the 2015 financial year, the business was barely profitable showing a turnover of $149,016 and a net profit (after all expenses) of just over $1,139 for those four months. The total sales income grew to $629,898 and $862,610 in FY 2016 and FY 2017 respectively. The net profit after all operating expenses in FY 2017 grew to $40,114. Tax Help Accounting and Business Services Pty Ltd is retained as accounting consultant for the applicant’s business. The accountant’s letter of 24 August 2017 confirms that since the applicant’s purchase, the business has grown to present a gross turnover of $862,610 for the 2016/17 financial year. This reflects the combined financial position for both pizza stores operated in South Australia under the company entity. Given these figures and the applicant’s oral evidence of continued profitability, the Tribunal accepts that the business continues to grow and remains profitable. The Tribunal places some weight on the accountant’s letter of 24 August 2017 that the applicant is able to provide Mr Singh a base salary plus superannuation, annual leave loading and WorkCover entitlements under the relevant awards. The Tribunal therefore accepts that the business will be able to employee the nominee for at least the period of two years with further extension.
The Tribunal accepts that the applicant requires the ongoing appointment of a Retail Store Manager given the absence of other managers in the business and given the other interests that the Director is presently personally pursuing and therefore unavailable to spend more time in the business directly. The Tribunal also notes the certification by Regional Certifying Body (RCB), Department of State Government SA dated 21 January 2016 which certifies that there is a need for a paid employee in the nominated position with the business activities of the nominating employer.
Given the above circumstances and evidence discussed, the Tribunal accepts that the applicant has identified a need for the nominator to employ a paid employee to work in the position of full-time Retail (Store) Manager under the nominator’s direct control.
The Tribunal also accepts that the application was made on the approved form 1395, or 1395 (Internet) for post 23 March 2013 applications, and was accompanied by any fee prescribed in r.5.37 (in this case nil fee).
Accordingly, the requirements in r.5.19(4)(a) are 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 notes that the applicant is a registered for payment of Goods and Services Tax, PA YG withholding tax, superannuation benefits and WorkCover entitlements as set out in the accountant’s letter 24 August 2017 and other documents in support of this submission. The Tribunal also notes the recent BAS and financial records, tax returns and most recent FY 2016 and FY 2017 financial statements, together with the ASIC records relating to business registration with ABN 85600076033.
The Tribunal notes the ongoing trading and level of sales / turnover and profitability set out in the aforementioned financial records and the tax accountant’s letter of 24 August 2017 and is therefore satisfied, having regard to all of the above, that the nominator is actively and lawfully operating a business in Australia. The Tribunal is also satisfied that the entity, J Parmar & Sons Pty Ltd (trading here as Pizza Hut Para Vista), directly operates that business.
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 explored this question at the hearing together with the applicant and the store’s manager and is satisfied that the nominated business does not include activities in relation to the hiring of labour to other unrelated businesses.
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 extension of the employment.
The Tribunal has had regard to the applicant’s contract of employment signed on 30 November 2015 that sets out that the nominee will be employed from 1 July 2014 for at least a period of two years.
The Tribunal has also considered the oral evidence provided at the hearing and is satisfied from this and the aforementioned contract of employment, that the nominee for the position of Retail (Store) Manager will be appointed for a minimum period of two years full-time from the grant of the visa. The Tribunal is further satisfied that the terms of employment do not expressly exclude the possibility of extending the period of employment, and notes that the nominee has already been employed for almost two years in this role.
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 visa applicant’s aforementioned employment agreement and notes the (then) base salary of $48,880 (presently $52,000) for an ordinary 38-hour week set out in the contract together with superannuation payments as required under the Superannuation Guarantee legislation. The Tribunal has also considered the other contracted terms and conditions and accepts that the salary and other conditions offered are consistent with the prevailing market rate and any applicable award and industrial requirements. The Tribunal also notes the certification by Regional Certifying Body, Department of State Government SA, dated 21 January 2016 in support of this factor.
In light of the above, 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 in South Australia.
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 adverse information known to Immigration a or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7).
The Tribunal explored this question at the hearing and the applicant’s evidence is that there is no possibility of any adverse information relating to immigration as he has not been in breach of any immigration laws in the past or been warned or fined for any such matter. There is no evidence before the Tribunal that the applicant has any adverse information known to Immigration and in light of this, the Tribunal accepts that there is otherwise 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.
The Tribunal explored this factor at the hearing noting that the applicant runs several businesses. The applicant’s evidence is that he has not been involved in any breaches for under-payment of wages or investigations by Fair Work Australia or for any breaches for occupational health, safety and welfare laws. He states that, as a Director, he has never been declared bankrupt or anything that can be considered adverse regarding his business background or anyone else associated with the nominator.
There is no evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia, that the Director confirmed in his oral evidence provided at hearing, which the Tribunal accepts.
The Tribunal is satisfied from the evidence presented that the applicant has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training benchmarks 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:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, and certain specified training benchmarks will be 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 at the ANZSCO skill level 1, 2 or 3; and that a Regional Certifying Body has advised the Minister about certain matters relating to the position.
The nomination was made under the RSMS (Direct Entry) stream and the Tribunal has proceeded to assess the application relevantly, against the criteria in r.5.19(4)(h)(ii) which requires that all of the following are satisfied:
·     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
· that a Regional Certifying Body has advised the Minister about certain matters relating to the position in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).
Turning to the requirement prescribed in r.5.19(4)(h)((ii)(D), this requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3.
For the nominated occupation of Retail (Store) Manager, qualifications required in Australia are at the AQF Associate Degree, Advanced Diploma or Diploma level (ANZSCO Skill Level 2). From the oral evidence and documents on file, the Tribunal accepts that the nominee has completed a Diploma of Management in 2012, which is directly relevant to the management responsibilities in the nominated occupation. Accordingly, the applicant satisfies ANZSCO Skill Level 2 and in any case has considerable experience of working in the hospitality / food industry at supervisory or management level over the past two or more years in the business.
The tasks of this position include:
a.determining product mix, stock levels and service standards
b.formulating and implementing purchasing and marketing policies, and setting prices
c.promoting and advertising the establishment's goods and services
d.selling goods and services to customers and advising them on product use
e.maintaining records of stock levels and financial transactions
f.undertaking budgeting for the establishment
g.controlling selection, training and supervision of staff
h.ensuring compliance with occupational health and safety regulations.
According to ANZSCO the role of Retail (Store) Manager relevantly, is one to “organise and control the operations of establishments which provide retail services”. The Tribunal accepts that this may include retail services such as in a restaurant or food industry as relevant here.
The Tribunal has considered the tasks found in ANZSCO for this position and compared these tasks to the description of the position provided by the applicant. The Tribunal notes that the ANZSCO classification is a guide and that there is variation from this depending on the particular task requirements of the position with the applicant. The Tribunal has proceeded on the basis that where a nominated position does not fall exactly within an ANZSCO occupation description, the Tribunal must make an assessment on all the available evidence before it. Although the Tribunal accepts there is some overlap with that of Retail Supervisor, it has very carefully explored the specific duties undertaken by the nominee for the nominated occupation.
The Tribunal accepts that there are certain tasks that would be carried out only by the Retail (Store) Manager from the list of tasks relating to the nominated occupation above. These duties would not be undertaken at Supervisor level. Such specific duties of the nominated position include: handling cash and banking the previous day’s takings, hiring staff and making decisions about retrenchments, undertaking staff training, monitoring budget and financial progress of the business in conjunction with the applicant’s accountants, ensuring compliance with occupational health and safety regulations, ordering stock, implementing local marketing strategies specific to the store’s nature and location within the master franchise’s overall marketing framework. On this latter point, the store provides local promotional activities within the franchise’s general marketing and promotional framework for specialist groups in its location. This includes a neighbouring church group that has regular meetings of up to 30 or more people on a weekly basis to whom specific promotional activities are marketed by the applicant. Other examples include flyers, letter drops with substantially reduced rates on food and drink items and free items, provided to local sports clubs including the Para Hills Cricket Club and Para Hills Soccer Club on regular sports nights. Other local marketing activities are targeted specifically to compete with the nearby Domino’s Pizza store.

Having considered the evidence before it and the submissions made, the Tribunal is satisfied that the nominated position can properly be classified in the occupation of Retail (Store) Manager, ANZSCO Skill Level 2. The Tribunal therefore, finds that the nomination satisfies r.5.19(4)(h)(ii)(D) of the Regulations.
The Tribunal accepts that the position is located in regional Australia, being, in this case the whole of the State of South Australia as set out in the relevant IMMI instrument under the Regulations. This satisfies r.5.19(4)(h)(ii)(A).
The Tribunal has already found above that there is genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The Tribunal finds that the Regional Certifying Body, Department of State Government SA, has certified on 21 January 2016 and advised the Minister, about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) - relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally by an Australian citizen or Australian permanent resident. On this latter point, the Tribunal has had regard to the advertisements for a store manager set out in Careerone.com.au on Saturday 26 September 2015 and Saturday 3 October 2015. The Tribunal notes the advertisement’s requirements for a Diploma or equivalent level qualification, current knowledge of food safety and hygiene standards, management ability and other relevant skills and knowledge for the nominated occupation.
The Tribunal accepts the oral evidence provided at the hearing that there was a large number of responses to the advertisement (30 or 40) of which a shortlist of 15 people was drafted and then further shortlisted to 8 or 9 person, all of whom were Australian citizens or permanent residents and were personally interviewed for the nominated occupation. The Tribunal accepts the oral evidence provided by the applicant’s Director that many of the shortlisted applicants we not able or prepared to undertake regular Friday, Saturday and Sunday weekend work which reduced the shortlist of suitable candidates considerably. Others on the shortlist were not able to undertake full-time work as they were studying or otherwise occupied and were not available regularly for the level of full-time work hours required in the nominated position. A further factor provided in the oral evidence was that a number of the shortlisted applicants were undertaking university studies and did not see themselves staying in the nominated occupation long-term as they were seeking careers in other areas relevant to their studies that included information technology and accounting. As a result none of the shortlisted applicants were ultimately suitable for the nominated occupation and it is at this point that the applicant’s Director turned to staff already employed that may be trained and skilled up to occupy the store management role. The Director’s evidence was that his brother who was performing the role of supervisor at the time (and is an Australian citizen) did not have the appropriate potential for the store management role and ultimately this resulted in the nominee being appointed to the full-time position of Retail (Store) Manager from December 2015. The Tribunal notes this is some weeks after the placement of the advertisement in September and October 2015. To formalise the employment arrangement the contract was signed in November 2015. In addition to the oral and documentary evidence discussed, the Tribunal also places weight on the aforementioned Regional Certifying Body certification attesting to the requirements. The Tribunal accepts therefore, that the requirements under r.5.19(4)(h)(ii)(F) are met.
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.
Stavros Georgiadis
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).

[2017] AATA 1600

13 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice