Megamight Enterprise Pty Ltd ATF The T & T Family Trust (Migration)

Megamight Enterprise Pty Ltd ATF The T & T Family Trust (Migration) [2020] AATA 5384 (19 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Megamight Enterprise Pty Ltd ATF The T & T Family Trust
CASE NUMBER:  1804265
HOME AFFAIRS REFERENCE(S):          BCC2016/4305075
MEMBER:Peter Emmerton
DATE:19 October 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 19 October 2020 at 12:56pm
CATCHWORDS
MIGRATION – nomination of a position – Direct Entry Nomination stream – position of Retail Manager (General) – tasks of the position correspond to the specified occupation – visa applicant’s management responsibilities, experience and qualifications – multi-department retail operation – reduced involvement of executive staff – actively and lawfully operating business – financial capacity to employ the nominee for at least 2 years – terms and conditions of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245
Migration Regulations 1994, rr 1.13, 5.19
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 1 February 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).
The applicant applied for approval on 20 December 2016. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Nor subsequently 5.19(4)(h)(i) of the Regulations because the nominated tasks do not therefore correspond to the tasks of an occupation specified by the Minister.
The applicant appeared before the Tribunal in a joint hearing via telephone on 19 October 2020, represented by Mr Tai Van Thai, Joint Director/Owner, in a combined hearing with MRT file ref.1807549, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ngo Nhat Tan, the visa applicant. The Tribunal found all of those presenting evidence to be credible and they appeared to answer questions in an open and honest manner without obfuscation.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its’ registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved all the requirements must be met.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity runs a moderately sized IGA branded Supermarket retail operation in metropolitan Perth Western Australia. The total number of staff employed in the store associated with this application is 14 including the visa applicant. The store is owned by a husband and wife team in their late 50’s. The husband, Mr Thai is the Director to whom the visa applicant reports.
The Tribunal notes that the total number of operational hours in the supermarket is substantial with a 7 day per week 90 hour opening schedule.
The visa applicant’s substantial responsibilities, previous experience, current years of management responsibilities, formal qualifications and attributes, clearly align with the duties associated with a Retail Manager (General), ANZSCO 142111.
The visa applicant possesses a Bachelor of Commerce (Accounting and Finance), gained from Curtin University, Western Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in demanding retail businesses with limited opportunities for advancement.
The Tribunal received and accepted evidence from the nominator, of the salary determination and recruitment processes. The Tribunal notes the associated proof of advertising in support of their recruitment for the position. It also notes the statement provided by the nominator attesting to their recruitment efforts and the associated challenges.
The Tribunal additionally accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period with the provision for extension. The employment contract dated 19 December 2016 stated the salary as $55,000, plus 9.5% Superannuation.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a large number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is not without understanding of the specialist knowledge required in this demanding and high-volume area of retailing. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position in this relatively geographically isolated Western Australian suburban location.
The Tribunal notes that a ‘Satisfied’, RCB Certificate has been issued by the relevant certifying body. The date of the certificate is 22 December 2016.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the retail business is operating on a moderately large staffing ratio of 14 part-time and full-time staff, with 4 Supervisory level staff reporting to the visa applicant, whom in turn reports to the Director. Once again, the Tribunal notes the extended working hours associated with the mandated 90 hour, 7 day per week operation, coupled with diverse product offerings required of a modern local supermarket. The number of employees and the complexity of tasks associated with a multi-department retail operation of this size would in the experience of the Tribunal, strongly suggest the need for a General Manager. The challenging logistical requirements of such a structure are self-explanatory.
It would appear logical that regardless of the skilful utilisation of technology, the owner/Directors are unable to undertake the daily duties of a General Manager unless present for the substantial operating hours. Nor is it likely that the operation could successfully sustain itself, maintain quality outputs or meet its’ legal responsibilities in relation to OH&S, Safe Food Handling and general HR matters without a relatively autonomous, locally employed General Manger ultimately overseeing the retail site.
The Tribunal acknowledges the statements made by the Director to the effect that they are growing less active in the business, approaching retirement age and travel regularly to visit family in Vietnam for extended periods of time. The Tribunal accepts as fact the assertion made during the hearing that the nominator’s wife no longer has any association with the day to day store operation. It also accepts that statement that the Director works in the store on weekends only in order for the General Manager to have rostered time off.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Retail Manager (General), under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1) Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has been provided with a range of BAS Statements including FY 2020, Business Tax Returns, and Profit and Loss Statements, including those produced for FY 2019, FY 2018, FY 2017 all of which correlated. ASIC Registration details were also researched by the Tribunal for this business entity. The Tribunal checked the status of the listed ABN and perused the company web site. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour - hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal notes that the business appears to have substantial revenues and proportionally aligned increasing profit. It also notes that the profit margins associated with a supermarket are very slim. This is in part why buyer’s groups such as Metcash / IGA operate in order to give greater combined buying power with subsequently improved margins.
The stability of the nominating entity in an ever increasingly competitive market attests to its’ ability to employ the visa applicant. Additional resilience is provided by business diversification across numerous major product categories. There is a clearly stated emphasis placed upon customer service as a way to protect their market share. The Tribunal also notes that the visa applicant has been employed in this role for 4 years prior to this review. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(d) is met.
The Tribunal has had regard to the Employment Agreement and position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services.
The Tribunal is aware that the workforce is highly mobile, the specialist skills associated with this type of operation are sought after and readily transferred between competing businesses. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff in order to obtain a market advantage. This is particularly relevant in the Western Australian market due to the large number of mid-size independent supermarkets competing with the 3 major retail brands.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s stated annual salary of $55,000 plus Superannuation at the rate of 9.5% as reflective of their qualifications and experience.
The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. The remuneration appears to fall within the mid-quartiles of similar positions on offer. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are 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 Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size and scope of the nominating entity’s business operations and the extended staffing hours required due to the mandated weekly operating hours of the business, (90). It is self-evident that the nominator cannot operate this relatively high-volume retailing business entity without a substantial and relatively self-contained general management structure in place in the store.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
Evidence was presented to the Tribunal regarding the recruitment process including the use of a recruitment consultancy and proof of advertising on Career One and an electronic job board, Adzuna. Further evidence was provided at the hearing that the Tribunal accepted as fact regarding the subsequent small number of suitably qualified and experienced applicants other than the nominee. The 3 applicants short listed and interviewed yielded the visa applicant. The Tribunal acknowledges that there are a large number and range of retail management roles readily available in Adelaide and throughout Australia. The demands of the job, suburban location and hours of this role may not have proven overly attractive to some candidates. The relatively isolated location may also provide a negative employment circumstance further limiting the potential candidate pool.
The Tribunal observes that a substantially more comprehensive evidence base was provided to it, than was presented to the delegate at the time of their decision. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Nor 5.19(4)(h)(i) of the Regulations because the nominated tasks do not subsequently correspond to the tasks of an occupation specified by the Minister.
The Tribunal has formed a different view. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 142111 for Retail Manager (General) and the stated duties of the visa applicant. Once again, it notes that the business owner’s participation levels in the business operation and clearly explained desire to reduce day to day activities. The Tribunal is also acutely aware of the substantial revenues and slim profit margins of the business and the diversity of the product offerings necessary for a successful supermarket of this type. Competent management is required in order to successfully compete in this challenging environment.
Additionally, the substantial opening hours of the business coupled with the number of staff across multiple departments, each with a Supervisor, clearly indicates the need for a General Manager to operate and manage a multi-functional staff team. This would by necessity most likely lead to a substantial degree of autonomy being associated with the role, as is reasonably expected of a General Manager in an ANZSCO level 2 designated position.

Whilst the visa applicant, would most likely report performance in all KPI areas via established systems and seek input from the Directors of the business, this coincides with the Tribunal’s expectations of a Retail Manager (General) directly reporting to the Directors of a business.
The Tribunal accepts that some of the marketing and sales promotion is overseen by the Master Franchisor. However local marketing, sales promotion and product mix and product volumes coupled with fresh produce and locally sourced specialty items are all determined by the Management of individual supermarkets. This is a substantial proportion of the day to day store operation and sales volumes.
The Tribunal acknowledges that this is a substantially sized and complex retail operation with a moderately large annual turnover. It is in no doubt the visa applicant requires a degree of flexibility performing the many and varied work duties, as you might expect in such a multi-faceted operation. The Tribunal has also concluded that a General Manager is required to oversee the retail business and does operate largely in-line with the ANZSCO 142111 specifications in order to meet logistic and work health and safety requirements whilst satisfying customer service and product quality expectations.
The position of Retail Manager (General), ANZSCO 142111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(i) and 5.19(4)(h)(ii).
The Tribunal has had regard to Form 1404 issued by an RCB, (Department of State Development SA), dated 22 December 2016 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton

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).

[2020] AATA 5384

19 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness