Kumari (Migration)

[2018] AATA 1818

Kumari (Migration) [2018] AATA 1818 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Santosh Kumari
Mr Ashwani Kumar Bawa

CASE NUMBER:  1707057

DIBP REFERENCE(S):  BCC2016/1101333

MEMBER:Warren Stooke AM

DATE:31 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicants meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.223 of Schedule 2 to the Regulations; and

·Cl.187.24 of Schedule 2 to the Regulations.

Statement made on 31 May 2018 at 10:37am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) visa – Direct entry scheme – Nominated position of Retail Manager (General) – Nomination approved upon review by Tribunal – Applicant employed as a Delicatessen manager – Commensurate with the position of Retail Manager – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 r 5.19 Schedule 2 cls 187.233, 187.24

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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 March 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) and specifically designated as Delicatessen Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations. In this regard, the nomination application was refused and because that application was refused, the application did not meet clause 187.233.

6. The applicants were represented in relation to the review by their registered migration agent.

7. Following the hearing, the Tribunal sought from the DIBP clarification regarding the existence of a s375 Certificate pertaining to this applicant and received confirmation from the DIBP on 24 May 2018 that no Certificate was attached to this applicant’s case and this was confirmed.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is that the delegate refused the application of the nominee, Inglewood Supermarket Pty Ltd, for approval of the position of Retail Manager (General). The nominating business owner, Mr. Peter Moore, appeared before the Tribunal on 24 April 2018 to give evidence and present arguments [Tribunal 1702093].

10. On 14 May 2018, the Tribunal set aside the delegate’s decision regarding the position [Tribunal 1702093] and remitted it to the Department for reconsideration.

    Nomination of a position

11. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

12. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

13. The nominator provided evidence [Tribunal 1702093] that the nominee is currently engaged on a common law contract that is underpinned by the terms of the Retail Industry Award 2010, which is the relevant safety net award regarding the minimum conditions of employment required under the provisions of the Fair Work Act 2009. In this regard, the nominee commenced employment with Inglewood Supermarket Pty Ltd on 22 February 2018 and evidence supported that the nominee lives in the environs of Inglewood. Further, evidence was given that the nominee is committed to work for Inglewood Supermarket Pty Ltd into the future and that the position will continue to be available for that purpose beyond the two years, particularly given the scarcity of qualified and experienced labour in the region. The nominee has committed to work for the nominator for the foreseeable future and beyond 2 years.

14. The nominator, in the written submissions prior to the hearing, provided the Tribunal with the following document, which confirmed that award and statutory obligations under the provisions of the Fair Work Act 2009 are being complied with:

    ·A copy of the employment contract;

15. Further, the nominator gave evidence [Tribunal 1702093] that:

    a.Superannuation payments are contributed into Host Plus in accordance with Superannuation Guarantee for the nominee;

    b.The underpinning award covering the nominee’s occupation is the Retail Industry Award 2010and that at the time of engagement the nominee was provided with an employment statement as provided under the provisions of the Fair Work Act 2009.

    c.The nominee is paid a wage that exceeds the minimum rate of pay provided under the award and a base salary of $42,088.80 per annum is paid to the nominee, as per the obligation of the contract of employment (Tribunal 1702093 Folio 55). The Tribunal, following a review of the submitted material, which was provided prior to the hearing, has verified the remuneration paid to the nominee, including superannuation contributions. The applicant also provided material from Payscale that demonstrated the remuneration paid to the nominee was within the market range for the position.

    d.The nominee is actually paid $900 per week, plus performance bonuses and superannuation.

16. The nominator also provided the following evidence concerning the proposed position of engagement for the nominee:

    “OBJECTIVE:  To manage the Delicatessen Department to ensure that maximum sales, profit and customer satisfaction are achieved through effective merchandising, pricing and inventory control.

    RESPONSIBILITIES

    A.   Staff:

    1.   Ensure that all delicatessen staff deliver high quality service;

    2.   Implement the supermarket's staff employment guidelines and monitoring for delicatessen departments staff during probation periods;

    3.   Implement the supermarket's procedures for induction of new delicatessen department staff

    4.   Ensure all delicatessen department staff work as a team;

    5.   Develop the delicatessen department staff so as to maintain and develop enthusiasm and job satisfaction;

    6.   Ensure all delicatessen staff are fully trained for the food handling certificate;

    7.   Conduct regular delicatessen staff performance reviews (at least quarterly);

    8.   Ensure all delicatessen department staff receive proper head wear and training so that the employees can effectively and efficiently perform their job;

    9.   Implement the supermarket's dress standard code and ensure that delicatessen department staff wear appropriate name badges;

    10. Encourage delicatessen department staff to attend the monthly staff meetings and to contribute to the matters being discussed at that staff meeting;

    11. Prepare weekly staff roster.

    B. Stock:

    1.   Ensure direct supplier order quantities are determined and orders are placed as required to ensure adequate stock levels are always available within the delicatessen department.

    2.   Ensure that stock and fixture price marking and ticketing is of the highest standard;

    3.   Ensure that sufficient stock of specials has been ordered to service the customers daily needs;

    4.   Ensure that the deli storeroom is adequately maintained in a clean and tidy condition;

    5.   Order and control stock and packaging materials to maintain continuity of range for customer satisfaction;

    6.   Check all incoming stock for the deli department, noting its quality and freshness.

    C.Deli Operations:

    1.   Monitor the accuracy of scales daily;

    2.   Ensure that specified maintenance and cleaning routines are observed for all cutting, displaying, packing, weighing and cleaning equipment and that all equipment is kept in a safe condition;

    3.   Ensure cool room area is clean and all stock is stored correctly to minimise shrinkage and guarantee freshness. Stock must be rotated - first in - first out;

    4.   Enforce all sanitation routines;

    5.   Control shrinkage through good ordering, serving and storage processes;

    6.   Ensure that all Government Regulations for pre-packed products are implemented;

    7.   Conduct weekly stocktakes.

    D. Marketing:

    1.   Ensure all weekly advertising and promotions are forcibly merchandised to generate maximum sales and profits;

    2.   Ensure all advertised lines are displayed in the cabinets and have the appropriate flag ticketing in place;

    3.   Implement local marketing programs, continually review delicatessen's operations including cross merchandising with other depts. when the opportunities arise to improve the store presentation;

    4.   Monitor competing delicatessens and discuss with the Supermarket Manager appropriate strategies to counteract competitor activity;

    5.   Review and respond to customer inputs in the delicatessen department.

    E.       Financial:

    1.   Prepare and monitor the delicatessen department budget;

    2.   Analyse the weekly delicatessen department financial report and key performance indicators;

    3.   Analyse the monthly departmentalised financial accounts for the delicatessen department and key performance indicators;

    4.   Identify problems in area of profitability within the delicatessen department and initiate strategies for improvement;

    5.   Comparison of budgets to actual performance for the delicatessen department.

    F.       Hygiene And Safety:

    1.   Maintain strict hygiene standards throughout the delicatessen department;

    2.   Enforce all regulations and policies relating to safety, security and fire precautions applicable within the delicatessen department.

    3.   Carry out all temperature checks on cases and cool rooms and maintain accurate records as per food safety requirements;

    G.       Management:

    1.   Effectively and responsibly delegate within the delicatessen department;

    2.   Lead by example in all areas of management;

    3.   Conduct a weekly management review meeting of the delicatessen department.

    4.   Report to the store manager as required in a timely and concise manner for all relevant matters;

    5.   Perform other duties as requested by the store manager.”

17. The Tribunal is satisfied that the job description provided by the nominator, together with the evidence canvassed in the hearing [Tribunal 1702093],  that the position of Delicatessen Manager is commensurate with the position of Retail Manager provided in ANZSCO code 142111 skill level 2. Further, evidence was provided in relation to the nominee, who has a Certificate III in Hospitality, a Diploma in Hospitality, a Diploma of Business Management, an Advanced Diploma of Management (Human Resources) and has 9 years’ experience. In addition, the nominee is prepared to stay indefinitely, as her family has settled locally and her husband is a Forman at the local flour mill, at Bridgewater.

18. The nominator gave evidence [Tribunal 1702093] that the following qualifications were required to meet the requirements of the position:

    i.Experience with food handling;

    ii.An eye for detail;

    iii.Communication skills;

    iv.Customer service focus;

    v.Management capacity, as part of the group

19. The nominator gave evidence [Tribunal 1702093] that the nominee is an exceptional employee, who has high communication and organising skills to manage the department and the two other employees, who highly respect the Delicatessen Manager. The nominee, based upon the evidence fulfils the requirements of the job description and ANZSCO 141111 skill level 2.

20. The nominator had endeavoured for a considerable period to find the right person for the position, including advertising in the local paper and posted positions on the store notice board. In November, the nominator advertised the position and secured only one applicant. The nominator stated in evidence [Tribunal 1702093] that about one third of employees are travellers and that in the last ten years he had had a turnover of 106 employees, predominantly part-timers and casuals who had left school and gone to university or travellers who had moved on.

21. Therefore, cl.187.233 is met.

22. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

23. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, his application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration

    DECISION

24. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.233 of Schedule 2 to the Regulations; and

    ·cl.187.24 of Schedule 2 to the Regulations.

    .
    

    Warren Stooke AM
    Member