Krisha Jeet Trading Pty Ltd ATF For Krisha Jeet Trust (Migration)

Krisha Jeet Trading Pty Ltd ATF For Krisha Jeet Trust (Migration) [2022] AATA 1614 (26 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Krisha Jeet Trading Pty Ltd ATF For Krisha Jeet Trust
REPRESENTATIVE:  Mrs Preeti Puri (MARN: 0960289)
CASE NUMBER:  1902652
HOME AFFAIRS REFERENCE(S):          BCC2017/2347183
MEMBER:P. Maishman
DATE:26 May 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 May 2022 at 12:20pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – retail store manager – tasks of position aligned with manager or supervisor – position in franchise – nominee endorsed by franchisor according to qualifications and training – nominee’s autonomous undertaking of duties – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 January 2019 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).
The applicant applied for approval on 30 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).
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 reg 5.19(4)(h) of the Regulations because the tasks to be performed in the nominated position do not correspond to the tasks of an occupation specified by the Minister.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant’s authorised contact person is Mr Nirav Gurjar who appeared before the Tribunal on 24 May 2022 to give evidence and present arguments. The Tribunal conducted a combined hearing with the affected visa applicant, Prapti Kanubhai Dodiya, who also appeared to give evidence.
The applicant was represented in relation to the review.
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 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 Tribunal had before it a copy of the Department’s file.
The applicant gave the Tribunal a copy of the delegates decision record with the review application. The applicant has operated the Boost Juice franchise at South Hedland since 2013. The applicant identified Ms Dodiya to be employed full time in the nominated position of Retail Store Manager (ANZSCO 142111) under its control. The delegate was not satisfied the tasks to be performed corresponded to the tasks for a retail manager as described in ANZSCO 142111.
On 12 January 2022, the Tribunal wrote to the applicant and invited it to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (4). The applicant responded and provided to the Tribunal additional and updated material in support of its application, including but not limited to:
·ASIC records in relation to the applicant company;
·Financial Statements for 2020 and 2021 and trust tax returns for the years ended 30 June 2019 and 2020;
·ATO Activity Statement from November 2019 to November 2021;
·Current organisational structure chart;
·Payroll summary;
·Evidence of advertising the nominated position;
·Position description for the nominated position;
·Updated market research showing average salary reports; and
·Payslip for the nominee; and
·An accountant’s letter dated 27 November 2021.
The applicant’s representative also provided to the Tribunal further submissions on 17 May 2022 and 24 May 2022.
Mr Gurjar and Ms Dodiya gave their evidence separately. Their evidence of the role and expectations of the position were consistent. The Tribunal is satisfied Mr Gurjar and Ms Dodiya are credible witnesses and accepts their oral evidence on that basis.
The application is compliant: reg 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 had regard to the documents on the Department’s file. The Tribunal is satisfied the applicant made an application online in accordance with the approved form 1395; the application included written certification confirming the applicant had not engaged in conduct in contravention of subsection 245AR(1) of the Act; and the nomination application was paid.
The application identifies a need for the nominator to employ Prapti Kanubhai Dodiya as a paid employee to work in the position of Retail Store Manager under the applicant’s direct control.
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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant declares it trades as Boost Juice South Hedland, established in April 2013. The Tribunal received copies of the applicant’s 2019, 2020 and 2021 financial statements and tax returns demonstrating increasing turnover and profit. The applicant provided an updated ASIC summary as evidence it is registered.
The Tribunal is satisfied the applicant is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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.
There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant's direct employ.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 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 applicant’s contract of employment with the nominee indicates that the nominee will be employed as a Retail Manager at South Hedland on a full-time basis for a minimum of two years after the grant of her Subclass 187 visa. There is nothing in the contract that expressly excludes the possibility of extending the employment period. The Tribunal has had regard to the applicant financial documents and is satisfied the applicant has the financial capacity to meet its obligations in relation the nominees ongoing employment.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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 applicant submits there is no Australian citizen or permanent resident performing equivalent work in the same workplace. The applicant provided a copy of its market research indicating the salary for the occupation of Retail Store Manager is between $41,704 too $70,000. The applicants offered salary of $55,000 is midrange to those described in the surveys. The employment contract offers terms and conditions set out in the Retail Manager Award, unless more favourable.
The Tribunal is satisfied the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
The applicant declares that there is no adverse information about the company and it is aware of the penalties for providing misleading or false information to the Commonwealth. The Tribunal has no reason to doubt that the information is correct.
The Tribunal finds that on the information available there is no adverse information known against the applicant/nominator.
Accordingly the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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 the applicant has not operated in compliance with the laws of the Commonwealth or the relevant workplace laws in Western Australia, where the applicant operates its business and employs staff.
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)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision.
Relevantly to this matter the requirements of reg 5.19(4)(h)(ii) but can be briefly summarised as requiring that the position and nominator’s business is located in regional Australia; there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control; the position 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.
Location of the position and the business
The Tribunal first considered reg 5.19(4)(h)(ii)(A) and (E) which require that the position is located in regional Australia and the applicant’s business is located at that place. Regulation 5.19(16) provides that 'regional Australia' is defined by the relevant legislative instrument, in this case IMMI 16/045.
The nominated position is for a Retail Manager to work at the applicant’s Boost Juice business located in South Hedland, Western Australia, 6722. At the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 16/045.
The Tribunal is satisfied that the position and the nominator's business are located in regional Australia, as all of Western Australia was specified as regional Australia in the relevant written instrument.
As the position and the applicant are in regional Australia, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(A) and (E) are met.
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.
Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control. Subparagraph 5.19(4)(ii)(h)(C) requires that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
Mr Gurjar told the Tribunal he arrived in South Hedland from Melbourne in 2011 and operated the business since 2013. He has developed other business interests including property development, cleaning and other juice enterprises that require his attention. The applicant provided receipts confirming the position of retail manager was advertised in April 2017 and Mr Gurjar says he asked family and friends to assist fill the position. Mr Gurjar said he received 6 applications and the nominee was the only suitable and reliable candidate. The applicant relies on the nominee to operate the Boost outlet at South Hedland. The nominee is responsible for the whole oversight of the business. He meets with her once a month or so to make sure everything is going well. He is very pleased the nominee has steered the business through the current climate that has seen other businesses fail. The nominee is responsible for recruitment and training of staff. The national marketing campaigns undertaken by the Franchisor have little impact on his business. The nominee promotes the business through sponsorship of sporting groups, radio and Facebook campaigns.
Having considered the evidence, the Tribunal is satisfied the applicant has a genuine need to employ a paid retail manager under the applicant’s direct control. The Tribunal is also satisfied the applicant could not fill the position by a locally resident Australian citizen or permanent resident.
Accordingly reg 5.19((h)(ii)(B) and (C) are met.
Tasks of the position
Regulation 5.19(h)(ii)(D) requires the tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument, in this case IMMI 15/083.
The nominated position of retail manager is specified in Item 2, Schedule 1 of IMMI 15/083 for the purpose of r.5.19(4)(h)(ii)(D) of the Regulations, specifying that the tasks to be performed in the position correspond to the tasks of an occupation Retail Manager in ANZSCO 142111 at Skill level 2.
The delegate was concerned the applicant’s trading entity is a franchise and pays royalties as such. The applicant did not provide a copy of the franchise agreement, and the delegate found it was likely the master franchise exercised significant control over such things as pricing, stock levels and marketing such that a Retail manager would not exercise autonomy. The delegate was concerned the tasks identified by the applicant more closely aligned with those described with the position of Retail Supervisor (ANZSCO 621511).
The ANZSCO 142111 describes the tasks for a Retail Manager to 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.
The ANZSCO 621511 describes the tasks for a Retail Supervisor to include:
·ensuring that customers receive prompt service and quality goods and services
·responding to customers' inquiries and complaints about goods and services
·planning and preparing work schedules and assigning staff to specific duties
·interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances
·instructing staff on how to handle difficult and complicated sales procedures
·examining returned goods and deciding on appropriate action
·taking inventory of goods for sale and ordering new stock
·ensuring that goods and services are correctly priced and displayed
·ensuring safety and security procedures are enforced.
The Tribunal had regard to the job description outlining the tasks of the nominated position, and the organisation chart.
Mr Gurjar told the Tribunal the nominated position was Manager level, not Supervisor level. The nominee had been endorsed by the master franchise as a Manager following completion of training and taking into account her Bachelor of Commerce degree and Diploma of Leadership and Management qualifications. The nominee is responsible for two team leaders who are supervisor level within the business. The master franchisor undertakes generic promotion which has little impact in remote areas such as South Hedland. The nominee undertakes local community promotion through sporting clubs, radio advertising and social media. The nominee manages the orders of branded franchise stock but fresh consumable stock is purchased on the open market without intervention from the franchisor. The applicant meets with the nominee periodically and the nominee is directed by the applicant. The applicant is able to rely on the applicant to undertake her duties autonomously, including all the tasks outlined in ANZSCO 142111.
The Tribunal has carefully considered the information before it and is satisfied that the tasks of the nominated position correspond to the tasks of the occupation customer service manager as specified in ANZSCO.
Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(D) is met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 21 June 2017 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e ) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:
·     There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
·     The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
·     The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.

Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
Accordingly the requirements of reg 5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
P. Maishman
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).

[2022] AATA 1614

26 May 2022

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