Limra Business Services Pty Ltd (Migration)

Limra Business Services Pty Ltd (Migration) [2023] AATA 237 (7 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Limra Business Services Pty Ltd
REPRESENTATIVE:  Miss Amen Karim
CASE NUMBER:  1916279
HOME AFFAIRS REFERENCE(S):          BCC2017/4028400
MEMBER:De-Anne Kelly
DATE:7 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 07 February 2023 at 1:34pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – retail manager – tasks of position – nominee the owner/director of business usually working alone and undertaking lower- and higher-level tasks – terms of job description and contract – modest profit and loss in last two completed financial years and reduced turnover in current year – vague and evasive evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 359AA
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 3 June 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 31 October 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)(ii)(D) of the Regulations because the tasks of the position did not correspond to the tasks of an occupation specified in the instrument being Retail Manager. The delegate noted that the director and owner of the business was also the nominee and that amongst other matters no one appeared to report to him, and it was considered that the owner/director undertook the higher-level tasks such as budgeting, marketing, pricing and product mix.
The applicant appeared before the Tribunal on 7 February 2023 to give evidence and present arguments. The hearing was originally scheduled for 27 January 2023 however on 12 January 2023 the applicant advised he was undergoing a medical procedure, attached evidence of this and as such the hearing was postponed.
The applicant was represented in relation to the review by Miss Amen Karim.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Evidence
The evidence in Schedule 1 was considered by the Tribunal and also the evidence at hearing.
Procedural matters
A postponement of the original hearing was requested and granted.
A brief adjournment was requested and granted.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.
It does not oblige the Tribunal to send a s.359(2) letter with a request for documents nor does it oblige the Tribunal to provide time post-hearing for the filing of documents. It is clear from the Invitation to Attend Hearing that the applicant is expected to file relevant material at least seven (7) days prior to the hearing date. The Tribunal would permit an applicant to file documents after a hearing only where it is clear those documents could not be obtained prior to the hearing; where a new matter has been raised by the Tribunal that the applicant may not have reasonably been aware of or similar circumstances that would necessitate it to allow post hearing filing on the basis of procedural fairness or natural justice. The applicant did not put forward any matters that would enliven concerns regarding procedural fairness or natural justice. As such, the Tribunal did not allow the applicant with a formal opportunity to file post-hearing submissions or evidence.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
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.
On 31 October 2017, the applicant trading as Quick and Easy Convenience Store, lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Retail Manager to be employed in Toowoomba QLD 4350 on $55,000 per annum in favour of Mr Rizwan Baig MIRZA.
Mr Rizwan Baig MIRZA the director of Limra Business Services Pty Ltd represented the applicant and gave an overview of the business. They had a number of stores and he has been in the business for some 10 years and now owns Easy American Confectionary in Toowoomba. Business is not great, but it is alright and because the review has taken so long, he is in limbo and “cannot give 100%.”
The business re-located from 337 Ruthven Street to a new address in Toowoomba in November 2022.
The Tribunal asked about the updated employment agreement 27 January 2023 between the director and the nominee showing the nominee residing at Lancaster Road Ascot QLD 4007 and stating the position is full time on $66,500 per annum.
“The employee must report for work on Visa grant date at the employer’s premises at 546 Bridge Street Toowoomba.”
It was concerning that the contract said he would commence work when the visa was granted and when asked who was managing the business if he was not working there, the director advised that he was working there on a full-time basis. He moved to Brisbane in 2018/2019 and drives up and back every day to Toowoomba although there are some nights he stays overnight with friends. He was asked if he drove up and down the Toowoomba range road every day, he advised that he did. When asked why he would put such a stipulation in an employment contract he initially said this was to inform the director, but the Tribunal responded he did not have to inform himself since he was both the director and nominee. He had difficulty locating the employment contract and opening it for several minutes and could initially offer no explanation for the stipulation however after the adjournment he said it was an “error” and could be fixed. He confirmed that he works full time in the business and works a 38-hour week.
The Tribunal took the applicant through the financial figures for FY 2021 and FY 2020 as provided below noting respectively a modest profit in the former and loss in the latter.

Year 2021 2020

Sales           163,144       343,027

Wages            65,908         85,307

Subcontractors 16,471           6,769

Expenses           151,307       371,570

Profit            11,837       (28,543)

Equity (17,087)      (78,925)

The applicant said that COVID drove sales down. He moved from Toowoomba to Brisbane in 2018 or 2019. He could not explain the profit and loss figures which seemed strange given he is both the director and nominee. He was asked about the contractors and whether they were undertaking renovation work on the business or installing new equipment, but he did not know. He was asked if they employed contractors to work in the business but again, he did not know. He said he is an “Nomination expert” but could not elaborate on what this means. His evidence was vague, and responses were evasive.
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 but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·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.
Tasks of the position correspond to the ANZSCO – reg 5.19(4)(h)(ii)(D).
The tasks to be performed in the position correspond to the tasks of an occupation specified by instrument being ANZSCO Retail Manager (General) – 142111.
Tribunal took the director through the Job Description and the director advised that there was a mixture of tasks of the director and retail manager, so this was not a fair representation of the tasks of the nominated position. Rather than adjourn the proceedings the Tribunal took the applicant through each task and he confirmed as below that these are the task of the nominated position of Retail Manager once the tasks of the director were removed.
Main Responsibilities:
• Organizing and controlling all store operations and allocating responsibilities to personnel
• Supervising and guiding staff towards maximum performance
• Preparing and controlling the store’s budget with the aim of minimum expenditure and
maximum profitability and efficiency.
Duties/Tasks:
• Monitor stock levels and purchases and ensure they stay within budget
• Responsible for budgeting effectively within the store
• Maintains operations by initiating, coordinating, and enforcing program, operational, and
personnel policies and procedures
• Deal with complaints from customers to maintain the store’s reputation
• Inspect the areas in the store and resolve any issues that might arise.
• Plan and oversee in-store promotional events or displays.
• Keep abreast of market trends to determine the need for improvements in the store.
• Ensure the store fulfils all legal health and safety guidelines
• Ensure the store complies with all other legal requirements.
• Completes store operational requirements by scheduling and assigning employees; following up on work results.
• Maintains store staff by recruiting, selecting, orienting, and training employees.
• Maintains store staff job results by coaching, counseling, and disciplining employees;
planning, monitoring, and appraising job results.
• Identifies current and future customer requirements by establishing rapport with potential and actual customers and other persons in a position to understand service requirements.
• Ensures availability of products by approving purchase contracts and maintaining inventories.
• Formulates pricing policies and suggestions by reviewing sales activities and determining
additional needed sales promotion
• Markets products by studying advertising, sales promotion, and display plans; analyzing
operating and financial statements for profitability ratios.
• Secures store products such as food and beverages as well onsite cash, by implementing
security systems and measures.
• Protect employees and customers by providing a safe and clean store environment.
• Contributes to team effort by accomplishing related results as needed.
Requirements:
• Proven experience as retail manager or in other managerial position
• Knowledge of retail management best practices
• Outstanding communication and interpersonal abilities
• Excellent organizing and leadership skills
• Commercial awareness
• Analytical mind and familiarity with data analysis principles
• Diploma or Higher, in Management or relevant field.
Maintains professional and technical knowledge by attending educational workshops;
reviewing professional publications; establishing personal networks; participating in professional societies.
It was noted that the wages for the latest financial statement FY 2021 are $65,908 however if the nominee’s then wages of $55,000 are deducted there is only $10,908 left to employ other staff and with Payscale advising that a sales assistant is paid an average of $21.60 per hour this means that the aggregate hours for the other staff are some 505 hours per annum of some 13 weeks of the year. Even allowing for the COVID-19 lockdowns which applied approximately from 22 March 2020 to 28 October 2020 with an additional smaller period of a week or so in Queensland this only represents approximately a quarter of FY 2021 which was locked down leaving the remaining three quarters of FY 2021 or some 39 weeks of the year as periods when the business could operate on a full-time basis. But in this period of time the aggregate work by the remaining staff was only 13 weeks. The nominee works a 38-hour week and confirmed that in the hearing and does not work overtime.
This was all put to the applicant under s359AA of the Act. The Tribunal said if it gave consideration to this information the reasonable conclusion the Tribunal drew from this information is that the nominated position is working by himself and serving customers, stocking shelves, unloading and storing stock and other duties associated with a salesperson for a significant proportion of FY 2021.
As such the role of Retail Manager and its tasks as shown in the Job description above would have to be fitted into the balance of the time not taken up by serving customers. The Tribunal put to the applicant under s359AA of the Act that if it gave consideration to this information, it may reasonably conclude that the Retail Manager duties as outlined in the Job Description and shown below are not required to be undertaken on a full-time basis. The higher managerial responsibilities of overseeing staff would not be undertaken on a full-time basis because the other staff would only be employed for an aggregate 13 weeks of the year.
Furthermore, the main tasks the nominee would be undertaking in the absence of other staff would be serving customers, stocking shelves, unloading and storing stock and other duties associated with a salesperson for a significant proportion of FY 2021. It is noted that none of these tasks are listed in the job description given by the applicant although as seen below all this was changed with an entirely new job description provided at 11.57am that same day.
The applicant requested an adjournment which was granted and following this he advised that up to FY 2019 it had been very good and then COVID-19 hit and there was a shortage of staff and although regional areas were a bit slow it “should be fine”. When asked to elaborate on this he advised that they are on track to do better than the previous year.
The agent asked to speak and although the Tribunal is not required to consider evidence from agents it considered her evidence which is that the applicant has summarised his evidence and that during COVID-19 the employees were not able to stay in the business and therefore he was not supervising staff and was therefore “pushed” more into the role of Retail Manager. The reasoning behind this was not evident when it is considered that for some 39 weeks of FY 2021 the nominee was serving alone in the store and was logically working serving customers and undertaking the role of a salesperson rather than being pushed into the role of Retail Manager.
This begs the question who is undertaking the tasks associated with a Retail Manager when demonstrably they need to be undertaken by someone and the nominee is working for a significant proportion of the year alone some 39 weeks and obviously serving customers and working as a salesperson on a 38-hour week after which he returns home in the evening. The Tribunal finds the director is undertaking the bulk of the roles listed in the job description after hours. It matters not that the director and nominee are the same person; it would be same if they were two separate individuals, the roles are distinct. The applicant must demonstrate that the tasks to be performed in the (nominated) position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph being ANZSCO Retail Manager 142111.
Before the hearing closed the applicant was invited to make further comments and he referred to the mistake in the employment contract which stated he would not commence work until the visa was granted which he said would be fixed.
After the hearing at 11.57am on 7 February 2023, the applicant through his agent sent an email stating the previous job description – which the applicant and Tribunal went though together in the hearing – was provided “in error and is outdated, he wishes to provide this one as official evidence’ and “request that you accept it”.
The new updated job description is shown below.
Organise and control the operations of establishments which provide retail services.
odetermining product mix, stock levels and service standards
oformulating and implementing purchasing and marketing policies, and setting prices
opromoting and advertising the establishment's goods and services
oselling goods and services to customers and advising them on product use
omaintaining records of stock levels and financial transactions
oundertaking budgeting for the establishment
ocontrolling selection, training and supervision of staff
oensuring compliance with occupational health and safety regulations

It is noted that this is “cut and pasted” word for word from the ANZSCO 142111 Retail Manager (General) found on the website of the Australian Bureau of Statistics being the body referred to in the relevant instrument.
The Tribunal can give little weight to this latest Job description – which depending on the perspective- is the third or fourth provided and was “outdated” less than two hours after the applicant had gone through the previous job description line by line with the Tribunal. It seems that the applicant’s evidence is either uncertain or constantly shifting. The Tribunal can also give only limited weight to this latest job description because it is a cut and paste of the ANZSCO generic tasks rather than a genuine attempt to provide context to tasks in this particular business.
The Tribunal has the applicant’s statement that they are on track to do better (in the next financial year) than the previous. The only evidence pertaining to FY 2022 is the BAS statements for the first two quarters of FY 2022 provided as below. The Tribunal has totalled and annualised them as below such that the turnover projected for FY 2022 is $120,748 with wages of $90,496.

BAS Sales Wages

Oct - Dec 2021            33,279         22,624

Jan - Mar 2022            27,095         22,624

Total            60,374         45,248

Annualise FY 2022              120,748           90,496

This turnover is significantly reduced from the $163,144 in FY 2021 and may indicate the business is not as sound as has been claimed but more concerning is if the wages of $90,496 are deducted as well as superannuation of $9,050 it leaves $21,202 for all the other expenses of the business such as rent, electricity, stock purchases, insurance, workers compensation payments, freight etc. It is noted that in FY 2021 for a turnover of $163,144 the expenses minus wages and superannuation were some $90,645.
It is simply implausible that a convenience store business could operate with only $21,202 for other expenses. These figures are so unrealistic that the Tribunal can give little weight to the wage’s figures for FY 2022 and to the claims that the business is on track to do better.
The Tribunal gives weight to the claims by the applicant that the nominee works full time 38 hours per week as a Retail Manager and that the business prospects are looking better however it gives more weight to the fact that the nominee was working for a significant proportion of FY 2021 alone or some 39 weeks and obviously serving customers and working as a salesperson on a 38-hour week after which he returns home in the evening. The Tribunal gives weight to the fact the director is undertaking most of the tasks required for a Retail Manager after hours. It matters not that the director and nominee are the same person; it would be the same if they were two separate individuals, the roles are distinct. In fact, the applicant has been at pains throughout to make a distinction between the role and duties of the director and the nominee. The Tribunal gives weight to the fact that the turnover shown in the BAS statements for FY 2022 rather than showing things are getting better show a significant decline in turnover. Taking all into account, the applicant has not demonstrated that the tasks to be performed in the (nominated) position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph being ANZSCO Retail Manager 142111.
Accordingly, the requirements of reg 5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
De-Anne Kelly
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 an identified person, as 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)       all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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).
Schedule 1 - Case -1916279 – Lima Business Services Pty Ltd
Documents including the following were provided with the original application.
1)Acknowledgement of nomination application 31 October 2017.
2)Online application for employer nomination 31 October 2017.
3)ABN and ASIC registration.
4)Organisation chart showing the nominee as retail manager full-time with two casual console operators.
5)Lease agreement from for 337 Ruthven Street, Toowoomba QLD 18 August 2017 to 17 August 2022 with 2 x 3 three-year options at rental of 15,600 per annum plus GST with 4% percentage review.
6)Photos of the interior and exterior of the convenience store.
7)Market salary analysis.
8)Advertisement for the position on gumtree listed 7 October 2017.
9)Employment agreement dated 24 October 2017 between the director of Limra Business Services Pty Ltd Mr Rizwan Baig Mizra and the nominee Mr Rizwan Baig Mizra on $55,000 per annum for a thirty-eight hour week with Job Description as below.
Job Description - Retail Manager
I. Organizing and controlling the stores stock levels and service standards.
2.    Managing staff recruitment and staff selection process.
3.    Training and supervising staff within the store and organising staff rosters.
4.    Preparing monthly budgets and sales reports.
5.    Analyse sales figures and forecast future sales volumes to maximise profits.
6.    Maintaining records or all the stock levels and financial transactions.
7.    Ensuring that all the displays are current and according to the store specials.
8.    Ability to effectively handle customer complaints and queries.
9.    Contact and negotiate with suppliers and order stock to ensure merchandise is at adequate levels.
10. Ensuring that the store is in compliance with the occupational health and safety standards and regulations.
10)Promotional material showing product specials.
11)Business plan 11 November 2017 with projected sales for FY 2019 and FY 2020 respectively of $594,000 and $653,400 with profits $81,278 and $95,106. The business plan shows a store in Teneriffe in Brisbane and also the store in Toowoomba.
12)Letter 10 November 2017 stating the applicant advertised the vacant position since 7 October 2017 and were unable to find a suitable applicant for the Toowoomba store and therefore the director/nominee will fill the vacant position in the Toowoomba store.
13)Regional certifying body approval 16 November 2017 including form 1404.
14)BAS statements for FY 2018.
15)Letter from the agent for May 2018 on the genuine need for the position and how the duties align with the ANZSCO tasks. The agent states that many of the duties of the role are at a higher skill level than that of a skills level 4 supervisor.
The Retail Manager is responsible for every aspect of the store's performance, such as managing all employees and their occupational development, overseeing store operations, meeting sales and profit targets, and participating in business planning. The Manager also participates in professional development as well as ongoing feedback from consumers. There is only one Store Manager employed in this store.
Role Breakdown/ Split of Duties
The role of Retail Manager in this business will be involved not only in determining pricing of products and creating and implementing operational practices in the business but will also be responsible for various operational necessities within the business. This particular role is highly independent and all operational control of the store has been provided to the Manager. This position is also responsible for determining rostering and staffing requirements, which includes the hiring, training and firing of staff. This role is also responsible for local area Marketing and creating and implementing store promotions. The Retail Manager will also be responsible for setting the trading hours of the store based on market trends and profitability of trade.
The role of Retail Manager at Quick and Easy Convenience Store Toowoomba, is a position that aligns with the ANZSCO duties and is supported by the position description and the evidence of the duties performed have been supplied with this submission.
It is submitted that there are certain tasks that would be carried out only by a Retail 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.
16)Job description.
Vital Responsibilities:
a)Arranging and controlling all store operations and allocating responsibilities to personnel
b)Supervising and guiding staff towards best possible outcome
c)Organising and controlling the store’s budget with the aim of minimum expenditure and maximum profitability and efficiency.
Duties/Tasks:
a)Keep an eye on stock levels and ordering the stock and ensure they stay within budget.
b)Less investing on stock and gain more profit out of it, by purchasing the stock on deals, promotions, offers and special offers from dealers, companies and distributors.
c)Organising replacements for the damaged stock by providing information to the providers.
d)Managing any claims, credits or refund for the damaged or any Expired stock by providing relevance information to the suppliers or to whomever we entitled to receive from the dealers.
e)Meeting with representatives on daily, weekly or monthly basis to place orders for the store.
f)Providing and organising all the Tax invoices to the company’s accountant for the lodgement of Quarterly BAS to the ATO.
g)Deals with accountant in purpose for the Tax returns for the company, Profit and loss Statements including providing employees group certificates as well and get obtain from accountant
h)Transfers stores monthly rent to them in the timely manner.
i)Paying companies GSTs or company’s income tax to the ATO.
j)Handle the complaints from customers to maintain the store’s reputation
k)Keep an eye the areas in the store and resolve any problems that might arise.
l)Plan and Actively involved in promotional events or displays.
m)Keep up to date on market trends to figure it out the need for improvements in the store.
n)Inspects sales and Profit reports and make general forecasts
o)Make sure the store complies all legal health and safety guidelines
p)Ensure the store fulfil with all other legal requirements.
q)Completes store operational requirements by scheduling and assigning employees; following up on work results.
r)Maintains store staff by recruiting, selecting, orienting, and training employees.
s)Making a monthly roaster for the staff.
t)Maintains store staff job results by coaching, counselling, and disciplining employees; planning, monitoring, and appraising job results.
u)Organizing Services and maintenance for the electrical equipment, Instruments such as POS, Freezers, Fridges and all equipment by ensuring they works accurate all time.
v)Identifies present and future customer requirements by establishing rapport with potential and actual customers and other persons in a position to understand service requirements.
w)Payments from company's account for, 28days setup accounts credits bills, in timely manners. Or any other payments.
x)Guards store expensive items as well onsite cash, by implementing security systems and all other precautionary measures.
Documents including the following were provided after the review application was lodged.
17)Notification of refusal of nomination application including notice of decision 3 June 2019.
18)Letter from the agent 24 January 2023 detailing the legislative requirements met in particular referring to the reason for refusal namely that the nominated person is not required for the ordinary running of the business in business activities. The Department also assessed the duties as being largely supervisory in nature rather than managerial and there were also concerns about the separation of duties between the applicant’s role as director and as retail manager.
The agent provides a list of duties undertaken within the business and states that the nominee is responsible for those duties and does not have any assistance as there are no other retail managers or managerial positions business. The agent differentiates between the duties of the director which are largely related to overseeing business performance with those of a retail manager who is responsible for the everyday managerial aspects of the retail manager role.
“Mr Mizra not only performs the duties listed within the job description, he ensures a business continues to run smoothly. Furthermore, in a volatile climate for small business, following the aftermath of the ongoing COVID-19 pandemic Mr Mizra has continued to keep his business afloat”.
19)Current ASIC registration stop
20)New job description with documents provided on 23 January 2023.
Main Responsibilities:
• Organizing and controlling all store operations and allocating responsibilities to personnel
• Supervising and guiding staff towards maximum performance
• Preparing and controlling the store’s budget with the aim of minimum expenditure and
maximum profitability and efficiency
Duties/Tasks:
• Monitor stock levels and purchases and ensure they stay within budget
• Responsible for budgeting effectively within the store
• Maintains operations by initiating, coordinating, and enforcing program, operational, and
personnel policies and procedures
• Deal with complaints from customers to maintain the store’s reputation
• Inspect the areas in the store and resolve any issues that might arise
• Plan and oversee in-store promotional events or displays
• Keep abreast of market trends to determine the need for improvements in the store
• Analyze sales and revenue reports and make general forecasts
• Ensure the store fulfils all legal health and safety guidelines
• Ensure the store complies with all other legal requirements.
• Completes store operational requirements by scheduling and assigning employees; following
up on work results.
• Maintains store staff by recruiting, selecting, orienting, and training employees.
• Maintains store staff job results by coaching, counseling, and disciplining employees;
planning, monitoring, and appraising job results.
• Achieves financial objectives by preparing an annual budget; scheduling expenditures;
analyzing variances; initiating corrective actions.
• Identifies current and future customer requirements by establishing rapport with potential and
actual customers and other persons in a position to understand service requirements.
• Ensures availability of products by approving purchase contracts and maintaining inventories.
• Formulates pricing policies and suggestions by reviewing sales activities and determining
additional needed sales promotion
• Markets products by studying advertising, sales promotion, and display plans; analyzing
operating and financial statements for profitability ratios.
• Secures store products such as food and beverages as well onsite cash, by implementing
security systems and measures.
• Protect employees and customers by providing a safe and clean store environment.
• Contributes to team effort by accomplishing related results as needed
Requirements:
• Proven experience as retail manager or in other managerial position
• Knowledge of retail management best practices
• Outstanding communication and interpersonal abilities
• Excellent organizing and leadership skills
• Commercial awareness
• Analytical mind and familiarity with data analysis principles
• Diploma or Higher, in Management or relevant field.
Maintains professional and technical knowledge by attending educational workshops;
reviewing professional publications; establishing personal networks; participating in
professional societies.
[10684963] Legal Submissions - Supporting Document Number: 19162Created on 06/02/09:39:15
21)ANZSCO job description for chief executive officer and retail manager.
22)Letter undated from the director advising that it is difficult to fill skill shortages in Toowoomba and therefore he had to fill the role of retail manager himself and the duties of that role are necessary to the operation of the business and separate to the duties he undertakes as director.
23)Australian citizens for employee of the business.
24)Payslips for the same employee from FY 2017 and FY 2019.
25)Organisation chart showing director, the retail manager (nominee) and six customer service staff.
26)Second organisation chart showing director, the retail manager (nominee) and two customer service staff.
27)Financial statements for FY 2020 and FY 2021.
28)BAS statements Oct – December 2021 and Jan – March 2022.
29)Market salary analysis for retail store manager Australia.
30)Advertisement for the position on gumtree.
31)Updated employment agreement 27 January 2023 between the director and the nominee showing the nominee residing at Lancaster Road Ascot QLD 4007 and stating the position is full time on $66,500 per annum.
“the employee must report for work on Visa grant date at the employer’s premises at 546 Bridge Street Toowoomba.”
32)Notification from the Department 7 February 2017 of approval as a temporary business entrance standard business sponsorship.
Documents including the following were provided the evening before the hearing.
33)Letter undated previously provided by the applicant regarding the workforce shortages in Toowoomba and the need for him personally to take up the role.
34)Photos of side walk billboards for a business “American Confectionaries & Drinks Store”.
35)Extract from a site called “Business Information” which identifies “Quick & Easy America Confectionary and Drinks” as being located at 546 Bridge Road, Torrington QLD 4350 which is apparently located in Athol and Blue Mountain Heights QLD 4350.
36)Payslips for the nominee showing him paid by him on 2 February 2023 by Limra Business Services Pty Ltd at a home address 313 Lancaster Street, Ascot QLD 4007.
37) Current ABN registration details for individual/sole trader under the name “Rizan Mirza” active ABN from 17 February 2021 and registered for GST from 2 February 2022 with main business location at QLD 4007. It is noted that the postcode for Ascot Brisbane QLD is 4007.
38) Updated job description provide 7 February 2023.

[2023] AATA 237

7 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Appeal

Year	2021	2020
Sales	163,144	343,027
Wages	65,908	85,307
Subcontractors	16,471	6,769
Expenses	151,307	371,570
Profit	11,837	(28,543)
Equity	(17,087)	(78,925)

BAS	Sales	Wages
Oct - Dec 2021	33,279	22,624
Jan - Mar 2022	27,095	22,624
Total	60,374	45,248
Annualise FY 2022	120,748	90,496