Mel (Migration)

[2021] AATA 101

Mel (Migration) [2021] AATA 101 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Amanda Emiller Mel

CASE NUMBER:  1814719

HOME AFFAIRS REFERENCE(S):          BCC2017/104496

MEMBER:Warren Stooke AM

DATE:22 January 2021

PLACE OF DECISION:  Melbourne

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

·cl 187.223 of Schedule 2 to the Regulations; and

·cl 187.233 of Schedule 2 to the Regulations.

Statement made on 22 January 2021 at 10:44am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – approved standard business sponsor – refusal of related position nomination application set aside on review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 187.223, 187.233

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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 9 January 2017. 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 (Cth) (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager – ANZSCO Code: 142111.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl 187.223 and cl.187.233 of Schedule 2 to the Regulations because the applicant did not have a valid approved sponsor for the position of Retail Manager – ANZSCO Code: 142111.

6. The applicant appeared before the Tribunal on 13 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Vijender Sharma, the nominating sponsor, together with Ms Tiffany Day. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has an approved standard business sponsor for the nominated position of Retail Manager – ANZSCO Code: 142111.

9. The applicant signed a contract of employment with Fresh as Pizza Pty Ltd on 9 October 2020, for a minimum of 2 years employment conditional on the grant of a 187 visa, with a salary of $52,650 per annum and superannuation contribution to Sun Super.

10. The applicant provided a copy of the RSMS Certificate of approval dated 10 January 2017 by the Cairns Chamber of Commerce for the position of Store Manager – ANZSCO 142111 with the nomination of Amanda Emillier Mel on a salary of $47,037 per annum.

11. The applicant provided evidence that the applicant possessed a Diploma of Leadership and Management from the Harvest Education Technical School, which was undertaken from 20 June 2016 to 9 January 2017 and a Bachelor of Commerce (Marketing and Public Relations); a Diploma of Business undertaken from 20 June 2016 to 5 January 2017; and a Diploma of Media and Communications awarded on 18 November 2013 and that she had completed years 11 and 12 secondary schooling in Cairns.

12. The applicant provided evidence that the applicant completed an IELTS English language test on 29 October 2016 with an overall score of 8.0.

13. The applicant’s nominating sponsor provided a copy of an organisation chart that showed that the applicant reports to Ms Day, Director, as the Store Manager and that this position has 5 casuals and 5 part-time employees, as direct reports.

14. The applicant stated that she was employed with Fresh as Pizza Pty Ltd in September 2016 after graduation and responded to an advertisement based upon her previous knowledge.

15. The applicant stated in evidence that the business is predominantly take-away with the capacity to accommodate up to 10 dine-in customers and has 3 instore employees and 4 drivers.

16. The applicant provided evidence that the position of Store Manager includes the following aspects and duties:

    a.In charge of all aspects of the business, including food, staff and cash;

    b.Reports to the Director, Ms Tiffany Day;

    c.Seeks advice regarding routes over the rosters;

    d.Manages stock and paperwork, with advice from the Directors;

    e.Manages local marketing and actual sales;

    f.Responsible for store maintenance; cleaning; customer service;

    g.Preparation of financial plans, budgeting and marketing;

    h.Cash control.

17. The applicant stated that she had been with the company for 4 years and had learned a lot of skills and stated: “the job is like my baby”.

18. The applicant confirmed to the Tribunal that she does not have health insurance.

    Evidence of Mr Sharma – Principal Director and Ms Day – Director

19. The nominating sponsor provided evidence that he is a director of the business, which operates Domino’s Pizza outlets in Port Douglas and two in Cairns and that his partner is Ms Tiffany Day. The restaurants were described as dine-in and takeaway/delivery.

20. The nominating sponsor provided evidence that the applicant required the following competencies to be engaged for the position of Retail Manager:

    a.Completed DOTTI team member training;

    b.Completed Pizza College consistent with Domino’s Pizza standards, policies and procedures;

    c.Must have Food Safety Supervisor Certificate and basic safety (OH&S) and security policies and procedures (Food Safety Standards of Australia and New Zealand);

    d.Recommended to hold a First Aid Certificate;

    e.Image standards;

    f.Principles of handling the rush;

    g.Cash handling policies.

21. Further, it was submitted that the responsibilities for the position, included the following:

    a.Be punctual and present in the correct Domino’s uniform;

    b.Fully accountable for the store;

    c.Cash Control;

    d.Customer Service;

    e.Determining product mix, stock levels and Service Standards, where there is a requirement to meet quality and replace perishables;

    f.Formulating and implementing purchasing and marketing policies and setting prices (Specials are priced at $18 and the store offers VIP cards);

    g.Promoting and advertising the establishment’s goods and services;

    h.Undertaking budgeting for the establishment (; 

    i.Maintaining records of stock levels and financial transactions;

    j.Store cleanliness and organisation:

    k.Recruiting, training and developing exceptional Team members:

    l.Lead by example; uphold all Domino’s policies and standards;

    m.Ensure Team Members comply with policies and standards;

    n.Accountable for all operations criteria including food, rosters, cash handling;

    o.Comply with Food Safety regulations;

    p.Conduct staff meetings;

    q.Queensland Store Managers must ensure their store is compliant with Child Employment Laws;

    r.Safety of all team members;

    s.Sales building – box topping/wobble boards/car tops etc;

    t.Maintenance and cleanliness of company vehicles;

    u.Vehicle GPS system management (if applicable);

    v.Foster a fun, can-do attitude;

    w.Customer feedback actioned within 24hrs;

    x.Complete and submit week end paperwork to head office on time;

    y.Maintain effective communication skills at all times.

    z.Any further duties as required by the Franchisee.

22. It was submitted that the responsibilities for the position, also included the applicant undertaking the banking with the local ANZ through an overnight drop bag and retaining an $800 float for the next working period.

23. The nominating sponsor stated that the trading hours of the business was from 3.00pm to 9.00pm Sunday to Thursday and from 3.00pm to 10.00pm Friday and Saturday. The applicant works from Tuesday to Saturday and then another manager will fill the position.

24. The nominating sponsor gave evidence that the applicant prepares signage in her own time and that the applicant has additional remuneration through bonuses based upon sales.

25. The applicant’s duties also include: cash control; training of staff; ordering stock; order marketing material; monitors the time for making pizzas and compliance with Dominos’ guidelines; organises stock; procures vegetables through local buys; prepares sales report, which is sent through to Domino’s and maintains the inventory that is submitted to Dominos.

26. It was stated that the applicant has worked at Dominos Port Douglas since 2016, and she has received multiple awards and recommendations, including recently a dinner with the CEO of Domino’s, Mr Don Meij. The applicant has also completed Pizza college and gained her food safety supervisor certificate.

27. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or prior to 1 July 2017, it must identify the applicant in relation to the position.

28. 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.

29. The Tribunal is satisfied on the basis of the evidence from the nominating sponsor and the applicant that the position and business is located in ‘regional Australia’ and that the nominating sponsor applied for Regional Certification, which was granted on 6 January 2017 by the Cairns Chamber of Commerce for the occupation of Retail Manager – ANZSCO Code: 142111 and for the applicant on a salary of $47,037.00 (at that time).

30. The Tribunal is satisfied, that a Retail Manager is required for the Port Douglas franchised business to manage the full scope of the operation, excluding financial and specific franchise responsibilities, which are handled by the Director. As such, the Retail Manager, operates the Domino’s franchise business with duties that are consistent with the ANZSCO descriptor for a Retail Manager, under the direct control of the director. [Case Matter: 11811041 – approval of the standard business sponsor for the nominated position]

31. Further, the Tribunal is satisfied, on the basis of the evidence, that the applicant has been engaged in a position of Retail Manager, wherein all the attendant tasks of a Retail Manager are undertaken by the applicant. As such, the Tribunal is satisfied that the applicant is employed in a genuine Retail Manager position, as required under the regulations.

32. The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal about the applicant or a person associated with the nominator.

33. Therefore, cl.187.233 is met.

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

    DECISION

35. 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.187.223 of Schedule 2 to the Regulations;

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

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.