Makin Dough Pty Ltd T/A Bakers Delight (Migration)

[2020] AATA 5483

Makin Dough Pty Ltd T/A Bakers Delight (Migration) [2020] AATA 5483 (5 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Makin Dough Pty Ltd T/A Bakers Delight

CASE NUMBER:  1837717

DIBP REFERENCE(S):  BCC2017/1216811

MEMBER:Ian Berry

DATE:5 November 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 05 November 2020 at 2:32pm

CATCHWORDS

MIGRATION – nomination of a position – Direct Entry Nomination stream – position of Retail Manager – insufficient evidence of financial situation – tasks to be undertaken by the nominee – genuine need for employee – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 359, 363

Migration Regulations 1994, r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

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 on 10 December 2018 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).

2. The applicant applied for approval on 30 March 2017. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations because the applicant did not provide sufficient information and supporting evidence including financial budgets covering expenditure and anticipated revenue. Further, not explaining as to why the present team is inadequate to the extent that the applicant requires a retail manager and a franchised business.

5. The applicant was represented in relation to the review by its registered migration agent.  Mrs G Rana MARN 1172301.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

8. Regulation 5.19(4)(h) contains several 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 (see legislative instrument IMMI 18/043), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are 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 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.

9. The applicant is a franchisee of the ‘Bakers Delight’ franchise.  It is a franchisee of other franchisee businesses, including on the northern part of the Gold Coast, Bakers Delight Kawana and Maroochydore. The applicant has also referred to running a franchise in northern New South Wales.

10. In support of its application, the following documents were supplied to the Department, the extent of which is relevant to the issue as to whether there is a genuine need for the applicant to employ its identified visa applicant (the nominee):

    ·Business Activity Statements for the quarters January/March 2016; January/March 2017;

    ·Business Activity Statements for the months of January 2017, February 2017 and April 2017;

    ·Profit and Loss Statement for the fiscal year ending 30 June 2016;

11. The applicant did not provide to the Department the tasks to be undertaken by their nominee in her role as a retail manager.  The qualifications, experience and tasks as provided by ANZSCO are:

    ·At least three years relevant experience may substitute for the formal qualifications listed above.  In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.  In Australia the required qualification is an AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2).  Tasks include:

    oDetermining product mix, stock levels and service standards

    oFormulating and implementing purchasing and marketing policies, and setting prices

    oPromoting and advertising the establishments goods and services

    oPromoting and advertising the establishments 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

    Occupations include a retail manager (general) ANZSCO code 142111, whose general tasks are to organise and control the operations of a retail trading establishment.

12. Subsequent to the refusal by the delegate of the applicant’s application, an application for review before this Tribunal was made, with the applicant providing to the Tribunal a copy of the delegate’s decision made 10 December 2018, a letter from the migration agent advising the correct name of the applicant’s business is Makin Dough Pty Ltd trading as Bakers Delight.

13. On next variable 6 March 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about:

    ·Information about the identity of any person authorised to speak and make decisions on behalf of the applicant.

    ·If the applicant is a company or registered business, current and historical information about its office holders’ registration details by way of a current and historical extract from the Australian Securities and Investments Commission (ASIC, about the applicant directly operating an active and lawful business in Australia, and its financial position for two financial years prior to the lodgement of the nomination application and for all financial years after the nomination application was lodged. Such information includes, but is not limited to, the following:

    oTax Returns;

    oFinancial Statements prepared by an accountant/financial advisor that includes a detailed profit and loss statement; and

    oBusiness Activity Statements lodged with the Australian Taxation Office.

    ·Information about the applicant’s current organisational structure, which includes

    the following:

    ·         where the nominated position sits in relation to that structure;

    ·         The applicant’s current and proposed employees, including their citizenship and/or residency status, job position, and time of employment; and

    o   Details about employees whose employment was either terminated or made redundant.

    o   Information about the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in ANZSCO;

    For example, job descriptions, work samples, emails, correspondence and other examples of the daily tasks to be performed in the nominated position, and also the nominated occupation’s position description in ANZSCO (see and type the nominated occupation’s 6-digit ANZSCO code number into the ‘Search’ function)

    ·Information about whether the terms and conditions of employment in the nominated position:

    ·         are on a full-time basis for at least 2 years;

    ·         exclude extending the period of employment;

    ·         are more or less favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same workplace.

    For example, an employment contract or letter of engagement that complies with relevant awards for the nominated position (if any).

    ·If the nominated position is not located in regional Australia and the applicant has paid the non-regional position application fee, information about:

    othe applicant’s business operating for at least 12 months and its recent training expenditure and commitment to future training expenditure; OR

    othe applicant’s business operating for less than 12 months and its plan for future training expenditure.

    For example, invoices or contracts for employee training, a training program that includes a course outline, attendance and identifies increased work competencies, or records of investment in certain industry training funds or recognised industry bodies

    ·If the nominated position is in regional Australia, information about:

    o   the need to employ a paid employee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area; and

    o   whether a specified Regional Certifying Body located in the same State or Territory as the nominated position has provided advice that:

    o   the terms and conditions of employment are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace;

    o   there is a genuine need to employ the nominated person as a paid employee to work in the nominated position under the applicant’s direct control; and

    othe position cannot be filled by an Australian citizen or permanent resident living in the same area.

    ·For example, local job advertisements for the nominated position that were not successfully filled, and the Regional Certifying Body’s certificate issued to the applicant in respect of this position

    ·Evidence of payments to satisfy the requisite training benchmarks, including, but not limited to, receipts from the relevant training funds or organisations.

14. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 18 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement [he/she/it] might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.  The applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

15. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

16. As the Tribunal has very limited evidence, and certainly incomplete, information required to make a decision approving of the applicant’s nomination.  Further, does not have any evidence concerning the role and duties of the applicant’s nominee who was to fill the position the subject of its application, it cannot be satisfied that there is a genuine need for the nominator to employ a paid employee, namely its nominee, to work in the position under the nominator’s direct control.

17. Accordingly, the requirements of r.5.19(4)(h) are not met.

18. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.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 r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

19. The Tribunal affirms the decision under review to refuse the nomination.

    Ian Berry
    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).