Midwest Petroleum Pty Ltd (Migration)

[2021] AATA 348

Midwest Petroleum Pty Ltd (Migration) [2021] AATA 348 (8 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Midwest Petroleum Pty Ltd T/A BP Murrurundi

CASE NUMBER:  1732463

DIBP REFERENCE(S):  BCC2017/4050559

MEMBER:Amanda Ducrou

DATE:8 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 08 January 2021 at 4:34pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Retail Store Manager – tasks to be performed corresponding to a specified occupation – terms and conditions of employment – genuine need to oversee the business – updated job description – higher level decision making – decision under review set aside           

LEGISLATION

Fair Work Act 2009
Migration Act 1958, ss 245, 359
Migration Regulations 1994, Schedule 1; rr 1.13, 5.19, 5.37

CASES

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 14 December 2017 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 1 November 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 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).

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 position identified in the nomination application is Retail Store Manager. The position of Retail Store Manager is one of the alternative titles listed for the occupation of Retail Manager (General) (ANZSCO 142111), which is identified in the nomination application. The application for approval identifies Mr Yuvraj Singh Virk as the nominee.

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument, being an ANZSCO skill level 2 Retail Manager occupation (ANZSCO 142111). The delegate found that the tasks to be performed in the position are more closely aligned with those of an ANZSCO skill level 4 Retail Supervisor occupation (ANZSCO 621511). For the same reasons the delegate also found that the application for approval of the nomination did not satisfy r.5.19(4)(h)(i) of the Regulations because the delegate was not satisfied that the nominated tasks correspond to the task of an occupation specified by the Minister in an instrument in writing for the purposes of r.5.19(4)(h)(i).

6. On 31 January 2020 the Tribunal wrote to the applicant in accordance with s.359(2) of the Migration Act 1958 (the Act) inviting the applicant to provide information to the Tribunal. The letter invited the applicant to provide information that demonstrated that all the relevant criteria in r.5.19 of the Regulations were met currently including, but not limited to, the criteria that the delegate had found were not established. Extracts of relevant parts of r.5.19 accompanied the letter. The letter asked the applicant to provide the information by 14 February 2020 and noted that the applicant could request an extension of time, but any such request must be received before 14 February 2020. The letter explained that if the requested information was not received within the period allowed or as extended (if an extension were requested and granted), then the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant responded to the Tribunal’s request for information on 13 February 2020 and provided written documents in support of the application. The Tribunal received further documents from the applicant on 27 October 2020. The documents that the Tribunal received on 27 October 2020 included written submissions dated 26 October 2020 from the applicant’s representative.

8. Mr Adil Khan, a director of the applicant, appeared before the Tribunal on 2 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yuvraj Singh Virk.  Mr Khan and Mr Virk gave evidence separately at the hearing. The Tribunal exercised its discretion to hold the hearing by telephone via MS Teams audio. The applicant’s registered migration agent, Mr Monil Arora, represented the applicant in relation to the review. Mr Arora participated at the hearing by telephone via MS Teams audio. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone via MS Teams audio, 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.

9. At the hearing the Tribunal invited the applicant to provide further documentation relevant to the application. The Tribunal received documents from the applicant on 23 November 2020.

10. 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

11. 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.

12. A copy of the delegate’s decision record accompanied the applicant’s application to the Tribunal for review. At the hearing Mr Khan confirmed that he had read the delegate’s decision and that he understood the basis on which the delegate had determined to refuse the application for approval of the nomination.

    Preliminary matters

13. At the hearing the Tribunal informed Mr Khan that there is a client of interest note on the Department’s file that indicates that the directors of the applicant own other entities operating similar businesses to the business operated by the applicant. The Tribunal informed Mr Khan that it considers that it is not necessary to invite the applicant to comment or respond to that information pursuant to s.359A or s.359AA of the Act, as the applicant provided information and documents to the Department and to the Tribunal that detailed the business interests of the applicant’s directors including the entities referred to in the note on the Department’s file for the purpose of the application for review, and the Tribunal does not consider that the information is potentially adverse to the applicant’s case and would be the reason, or a part of the reason, for affirming the decision under review.

    The application is compliant: r.5.19(4)(a)

14. 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) of the Act. The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

15. Based on the information in the Department’s file, the Tribunal is satisfied that the application for approval of the nomination was made on the approved form and was lodged electronically using the e-lodgement facility. Consistently with r.5.37(2)(a), no fee is payable in respect of an application for approval of the nomination of a position located in regional Australia. The Tribunal is satisfied that the relevant s.245AR(1) certification is provided in the application and that the application identifies the need for the applicant to employ a paid employee to work in the nominated position of Retail Manager (ANZSCO 142111) under the applicant’s direct control.

16. Accordingly, the requirement in r.5.19(4)(a) is met.

    Status of the nominator: r.5.19(4)(b)

17. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

18. The documents before the Tribunal included: an Australian Securities and Investments Commission (ASIC) current company extract for the applicant issued by ASIC on 5 June 2019; certificate of registration of the applicant on 10 June 2016 as a company, issued by ASIC; record of registration for the business name BP Murrurundi issued by ASIC on 15 December 2016; letter dated 26 February 2020 signed by Mr S Gupta, owner and director of Tax Wealth Accountants (the applicant’s accountant and a registered tax agent) summarising the business interests of Mr Khan and the other director of the applicant; the applicant’s financial statements for the 2018, 2019 and 2020 financial years (the financial statements include 2017 financial year information) prepared by the applicant’s accountant, including compilation reports. The financial statements for the 2019 and 2020 financial years were signed by the applicant’s accountant with directors’ declarations signed by Mr Khan and the other director of the applicant; the applicant’s tax returns for the 2018, 2019 and 2020 financial years (the tax returns for the 2019 and 2020 financial years included declarations confirming the accuracy of the information in the tax returns and the electronic lodgement with the Australian Taxation Office (ATO) signed by Mr Khan as the applicant’s public officer and Mr S Gupta as the applicant’s tax agent); ATO portal printouts of activity statements lodged by the applicant with the ATO for the 2019 and 2020 financial years; a table detailing the applicant’s current organisational structure; and other information about the applicant’s business activities. The documentary evidence is consistent with the applicant actively and lawfully operating a business in Australia.

19. Mr Khan and Mr Virk described the nature of the applicant’s business and the business operations. Their oral evidence was consistent with the information in the documents before the Tribunal. Based on the oral and documentary evidence the Tribunal is satisfied that the applicant is actively, directly and lawfully operating a retail trade business as a service station and convenience store with a truck drivers’ lounge and facilities and a small restaurant area. There is a kitchen which produces takeaway food for sale during the day and food for the truck drivers’ lounge and restaurant in the evenings. The Tribunal is satisfied that the applicant operates its business under the registered business name ‘BP Murrurundi’, and that the applicant’s business is located at 3-5 Mayne Street, Murrurundi, New South Wales, Australia.

20. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

21. 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.

22. There is no information before the Tribunal indicating that the applicant’s business activities include activities relating to the hiring of labour to unrelated businesses. The employment agreement made on 16 November 2020, is the employment agreement made most recently between the applicant and Mr Virk. It includes a job description setting out the duties and responsibilities for the position of Retail Store Manager. The employment agreement provides for Mr Virk’s direct employment in the position of Retail Store Manager.

23. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

24. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

25. The employment agreement that applied when the nomination application was lodged was made on 11 October 2017 between the applicant and the nominee. It provided for Mr Virk’s employment in the position of Retail Store Manager on a full-time basis from the day when his Subclass 187 visa application is approved at a gross salary is $52,000 per annum, plus superannuation at the applicable statutory rate (being the rate of 9.5% per annum). The employment did not expressly exclude the possibility of extending the period of Mr Virk’s employment. A letter dated 10 February 2020 from Mr Khan confirmed that the employment agreement dated 11 October 2017 was currently in place with Mr Virk’s current salary being $55,000 per annum plus superannuation.

26. The Tribunal notes the consistent oral evidence of Mr Khan and Mr Virk that Mr Virk commenced employment in February 2017 at another service station business at a different location in New South Wales owned by a company related to the directors of the applicant. From then until June 2017 Mr Virk worked as a general store assistant. While working there Mr Virk received training as a Retail Store Manager because the applicant’s directors had previously had difficulty finding suitable employees to fill Retail Store Manager vacancies at their other businesses and they considered that Mr Virk may be a suitable candidate to be trained for a Retail Store Manager role given that he had relevant tertiary qualifications and employment experience. The business required extensive renovation for approximately 12 months after the applicant acquired it in 2016. After the renovations were completed the existing area manager’s position was not needed but the business required a Retail Store Manager. By June 2017 Mr Virk had received the necessary training and he moved to Murrurundi to take up the position of Retail Store Manager.

27. The Tribunal discussed concerns it held about the currency and applicability of the employment agreement to the ongoing employment of the nominee in the nominated position with Mr Khan at the hearing. After the hearing the Tribunal received an employment agreement made on 16 November 2020 between the applicant and the nominee. The provisions of the employment agreement are consistent with the oral and documentary evidence of the current and ongoing employment of the nominee including the evidence of the current organisational structure of the applicant’s business. The employment agreement provides for Mr Virk’s continued employment in the position of Retail Store Manager on a full-time basis at a gross salary of $55,000 per annum, plus superannuation at the applicable statutory rate. The employment agreement provides for Mr Virk’s employment in the position of Retail Store Manager for a minimum period of two years after the approval of his Subclass 187 visa application, and stipulates that his employment in the position may be extended for a further term subject to mutual consent of the applicant and Mr Virk.

28. Mr Virk’s oral evidence and the documents that he provided confirm that Mr Virk receives the remuneration and all entitlements due to him, as provided for under the employment agreements dated 11 October 2017 and 16 November 2020. The Tribunal noted at the hearing that the levels of the employer superannuation contributions shown in the source superannuation statements for Mr Virk for the 2018 and 2019 financial years did not equate to and were lower than 9.5% of Mr Virk’s gross salary, as required under the applicable superannuation legislation. The applicant provided further documentation confirming the superannuation contributions made for Mr Virk after the hearing which addressed the Tribunal’s concerns. The Tribunal is satisfied that the level of superannuation contributions made by the applicant for Mr Virk is commensurate with the statutory requirements for employer superannuation contributions based on Mr Virk’s gross salary.

29. Based on the oral and documentary evidence the Tribunal is satisfied that Mr Virk has been employed by the applicant on a full-time basis in the position of Retail Store Manager at the applicant’s business at Murrurundi since June 2017, and that Mr Virk continues to be employed by the applicant in that position on a full-time basis in accordance with the employment agreement dated 16 November 2020. The Tribunal is satisfied that, as provided for under the employment agreement dated 16 November 2020, Mr Virk’s current remuneration in the position of Retail Store Manager is $55,000 per annum plus superannuation at the applicable statutory rate. In addition to the remuneration and entitlements provided for under the employment agreement, the employment agreement also makes stipulation for the applicant to provide accommodation to Mr Virk at the applicant’s cost and for the applicant to bear all costs associated with the accommodation including utilities – water, gas and electricity at no additional cost to Mr Virk. The Tribunal is satisfied that the terms and conditions of the nominee’s employment in the nominated position do not expressly exclude the possibility of an extension.

30. The Tribunal considered the evidence relating to the applicant’s financial capacity to employ the nominee for at least two years at the specified salary of $55,000 per annum plus superannuation at the statutory rate and the provision of accommodation as stipulated in the 16 November 2020 employment agreement. The Tribunal had regard to the financial statements, tax returns and the activity statements that the applicant provided. The Tribunal’s analysis of the financial documents did not identify anything of remark. The information in the financial documents is consistent with the applicant’s business being profitable and with it being in a sound financial position with sufficient financial resources to meet its ongoing financial commitments including its financial commitment to provide full-time employment to the nominee at the stipulated remuneration on an ongoing basis for at least two years. The Tribunal notes Mr Khan’s oral evidence that the profitability of the business was not greatly affected by the COVID-19 pandemic. This is borne out by the information in the more recent financial documents.

31. The Tribunal is satisfied, based on the material before it, that the applicant has the financial capacity to employ the nominee as a full-time Retail Store Manager and that the applicant has the financial capacity to maintain the nominee’s employment for at least two years.

32. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(4)(e)

33. 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.

34. The terms and conditions of the employment agreement dated 16 November 2020 include terms relating to the nominee’s working hours, his annual salary, superannuation and leave entitlements. The employment agreement provides that the nominee is entitled to leave in accordance with the National Employment Standards (the NES). The Tribunal was provided with fact sheets issued by the Fair Work Ombudsman for annual leave and the NES, and for personal/carer’s leave, compassionate leave and family and domestic violence leave and the NES that were attached to the employment agreement. The employment agreement provides that the terms and conditions of the nominee’s employment are derived from the employment agreement, company policies and procedures, the common law and relevant legislation including NES in the Fair Work Act 2009, for example long service leave and annual leave.

1. The employment agreement dated 16 November 2020 provides for the nominee to be paid a gross salary of $55,000 per annum. The application form states that there is no Australian employee or employees in the nominee’s workplace doing the same work as the nominee. This was confirmed by the oral evidence of Mr Khan and Mr Virk and is consistent with the table setting out the applicant’s current organisational structure. As there is no Australian employee or employees in the nominee’s workplace doing the same work as the nominee, the Tribunal considers that it is appropriate to have regard to relevant market information.

2. The employment agreement states that the terms and conditions of the nominee’s employment are not prescribed by any award or industrial agreement. The Tribunal notes that the General Retail Industry Award 2010 (the Award) excluded motor vehicle retailing and motor vehicle fuel and parts retailing. However, the Tribunal observes that the minimum weekly wage specified in the Award for a retail employee level 8, which is the highest level of classification, is $995.50 per week ($51,766 per annum). This is lower than the proposed salary specified in the employment agreement. The proposed salary is the same as Mr Virk’s current salary as confirmed by his PAYG Payment Summary for the 2020 financial year, and the oral evidence given at the hearing.

3. The Tribunal received evidence and documents from the applicant in support of the applicant’s claims regarding the terms and conditions of employment applicable to the nominated position. The documents that the applicant provided after the hearing included a document headed Salary Justification, which sets out information extracted from the PayScale website ( and job advertisements published on the Seek and Indeed websites ( The PayScale extract lists the average petrol station industry Retail Store Manager salary in Australia as $55,275 per annum. An extract from the career advice section of the Seek website lists $55,000 per annum as the most common salary in New South Wales for a Retail Store Manager. The applicant submitted that the value of the accommodation, including utility expenses, provided to the holder of the nominated position in accordance is approximately $15,600 per annum in addition to the annual salary of $55,000 plus superannuation. The applicant provided a copy of a residential tenancy agreement dated 25 October 2020, signed by the applicant as landlord in confirmation of the applicant’s lease of the property and the amount of weekly rental payable by the applicant as landlord.

4. The Tribunal is satisfied that the above information indicates that the rate of pay of $55,000 per annum plus superannuation applicable to the nominated position is commensurate with the average rate of pay for a Retail Store Manager in New South Wales.

5. The Tribunal is satisfied, based on the available evidence, that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the nominator’s business premises.

6. Accordingly, the requirement in r.5.19(4)(e) is met.

   No adverse information known to Immigration: r.5.19(4)(f)

7. Regulation 5.19(4)(g) 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 of the Regulations.

8. There is no information before the Tribunal indicating that there is adverse information known to the Department about the nominator or a person associated with the nominator.

9. Accordingly, the requirement in r.5.19(4)(g) is met.

   Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

10. Regulation 5.19(4)(h) requires the applicant to have 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.

11. There is no information before the Tribunal indicating that the applicant does not have a satisfactory record of compliance with workplace relations laws in the location in which the applicant operates its business and employs employees in the business.

12. Accordingly, the requirement in r.5.19(4)(g) is met.

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

13. Regulation 5.19(4)(h) contains a number of alternative requirements. The requirements relevant to this case are summarised as follows: 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 a regional certifying body has advised the Minister about certain matters relating to the position.

    Location of the position and the business

14. The Tribunal must be satisfied that the position and the business operated by the nominator are located in regional Australia for the requirements in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E) to be met.

15. The nominated position of Retail Store Manager is located at the place of the applicant’s business at 3-5 Mayne Street, Murrurundi, New South Wales, 2338.

16. At the time when the application for approval of the nomination was lodged, ‘regional Australia’ was defined in r.5.19(7) as meaning a part of Australia specified by the Minister in an instrument in writing for this definition. The current legislative instrument is IMMI 18/037. However, IMMI 18/037 only applies to applications lodged on or after 18 March 2018. IMMI 18/037 repealed the previous legislative instrument (IMMI/059).

17. As neither the current legislative instrument nor its immediate predecessor can be relied on by the Tribunal in making a finding as to whether the position and the business operated by the nominator are located in regional Australia, the Tribunal had regard to the legislative instrument that applied when the applicant lodged the application for approval of the nomination. That legislative instrument was IMMI 16/045. Consistently with Schedule B to IMMI 16/045, the New South Wales postcode of 2338 is located in regional Australia.

18. In the circumstances, the Tribunal is satisfied that the position and the business operated by the applicant are located in regional Australia. Accordingly, the requirements in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E) are met.

    Genuine need for the nominator to employ the nominee as a paid employee in the position under the nominator’s direct control

19. The Tribunal must be satisfied that there is a genuine need for the nominator to employ the person identified under r.5.19(4)(a)(ii) (the nominee) as a paid employee to work in the position under the nominator’s direct control for the requirements in r.5.19(4)(h)(ii)(B) to be met.

20. The written submissions dated 26 October 2020 from the applicant’s representative addressed the applicant’s fulfilment of the requirements in r.5.19(4)(h)(ii)(B). The submissions detailed the background to the establishment of the BP Murrurundi business, the other business interests of the directors, the circumstances in which Mr Virk was employed in the nominated position and the growth and current position of the business. In summary, the applicant submits that there is a genuine need for the applicant to employ a paid employee to work full-time in the position of Retail Store Manager under the nominator’s direct control due to the multiple business interests of the directors and the physical distance between the directors’ business interests.

21. Mr Khan’s evidence was that his background is in the banking and finance industry. He acquired his first ownership interest in a service station in 2015 (owned by a different entity to Midwest Petroleum). The BP Murrurundi business was acquired in August 2016. It was a Shell-branded service station. It was rebranded as a BP service station in December 2016. Murrurundi is several hours’ drive from Sydney where he lives. He cannot manage the business himself from Sydney due to the distance and the need for him to devote time to his other business interests. Mr Khan and the other director of the applicant acquired further sites around the time when the Murrurundi business was acquired. The business was structured differently then. After acquisition the site required extensive renovations for around 12 months. During that period, it was necessary for the applicant to retain the existing area manager. However, the area manager’s role was no longer needed following completion of the renovations, but the business required a Retail Store Manager. Currently, the business operates as a service station and convenience store. The service station and convenience store are open every day of the week from 5am to 10pm. When the business was acquired the kitchen operated during the same hours as the other parts of the business. However, at Mr Virk’s instigation, the kitchen operates only in the evenings from 5pm to 9pm. Food that is prepared in the kitchen is sold during the day as takeaway only. In the evenings, food prepared in the kitchen is also sold in the truck drivers’ lounge and the restaurant.

22. Mr Khan gave evidence in relation to the level of his involvement in the BP Murrurundi business. The extent of the time that he devotes to each business varies according to circumstances. As an example, he has recently acquired an interest in a new business, which is much closer to his home and he is devoting more time to that business. He is also negotiating to purchase a stand-alone grocery store. Mr Khan estimated that he spends little time on the BP Murrurundi business and that the extent of time that he spends on it would not exceed 10% of his available time. His involvement is limited to high level strategic decision-making. The other director of Midwest Petroleum is involved in the business in his capacity as a director of the applicant but concentrates on other business interests.

23. Mr Virk started work for Midwest Petroleum Pty Ltd in his current position as Retail Store Manager in June 2017. Prior to then he worked in New South Wales at another service station business owned by the directors of the applicant.  Mr Virk worked at that business from February 2007 until he started work at BP Murrurundi. Mr Khan gave evidence that at the other business Mr Virk was employed as a retail store assistant, not as the Retail Store Manager. However, on recognising the quality of Mr Virk’s work, his qualifications and that his employment history which, did not include direct experience as a Retail Store Manager but demonstrated that Mr Virk possessed the necessary skills for the role of Retail Store Manager, the directors of the applicant decided to provide training to Mr Virk for a Retail Store Manager’s role should such a position become needed in their businesses, as they had found it impossible to find people from local areas with the necessary qualifications and experience who wanted to take on these positions. Mr Virk’s oral evidence was consistent with the documentary evidence of his prior employment and qualifications. The Tribunal is satisfied that the evidence demonstrates that Mr Virk’s employment history includes experience in retail sales and marketing, event management and information technology. Mr Virk holds tertiary qualifications in Management (International Business Economics) and in Project Management.

24. The applicant provided a table setting out the current organisational structure of the business. The descriptions that Mr Khan and Mr Virk gave of the business structure are consistent with the organisational chart. The Retail Store Manager is responsible for managing five employees. Three of the employees are console operators and the other two employees are cooks. During busy periods casual employees are also engaged as needed. All of the employees live locally. The business operates seven days per week for 17 hours per day. The Retail Store Manager reports directly to the applicant’s directors. There is no existing managing director or person performing a similar role who has a financial stake in the business with the ability to perform the higher-level managerial functions for which the Retail Store manager would otherwise be responsible.

25. Having regard to the evidence of the business interests and activities of Mr Khan and the applicant’s other director, and the size of the geographical area over which their business interests and activities are spread, the Tribunal accepted that Mr Khan and the other director of the applicant do not have the requisite capacity to perform the duties of the nominated position of Retail Store Manager of the business. Based on the oral and documentary evidence regarding the nature, scope and size of the business, the Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee as a paid employee to work in the nominated position of Retail Store Manager under the applicant’s direct control.

26. Accordingly, the Tribunal is satisfied that the requirements in r.5.19(4)(h)(ii)(B) are met.

    Position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area

27. The Tribunal must be satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the place where the position is located in order for the requirements in r.5.19(4)(h)(ii)(C) to be met.

28. Mr Khan described the attempts that he made to fill the position at the hearing. The Tribunal received documents from the applicant confirming that job advertisements were placed on the Jobsearch website (jobsearch.com.au), the Indeed website ( and the website of Trinity Business Advisory ( as well as in store in September and October of 2017. There were 18 responses to the advertisements, but the applicants did not have relevant qualifications or experience or were not Australian citizens or Australian permanent residents. The Tribunal notes the opinion of the regional certifying body (RCB) (discussed in detail later in these reasons) advising the Minister that among other matters the nominated position cannot be filled by an Australian citizen or Australian permanent resident living in the same local area as the nominated position.

29. Based on the available evidence, the Tribunal is satisfied that the position of Retail Store Manager at the applicant’s business premises at Murrurundi cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area.

30. Accordingly, the requirements in r.5.19(4)(h)(ii)(C) are met.

    Tasks to be performed in the position correspond to the tasks of an occupation specified by instrument

31. The Tribunal must be satisfied that the tasks of the nominated position correspond to those of an occupation specified in the relevant legislative instrument for the requirements in r.5.19(4)(h)(ii)(D) to be met. The applicable instrument specified for this purpose is IMMI 17/058. Section 7 of IMMI 17/058 provides that the specified occupation must: be listed in ANZSCO; have an ANZSCO skill level of one, two or three; and be listed in Schedule 1 to IMMI 17/058. Retail Manager (General), ANZSCO code 142111, skill level 2 is listed in Schedule 1 to IMMI 17/058. The occupation of Retail Supervisor, ANZSCO code 621511, is not listed in Schedule 1. The Tribunal notes that the occupation of Retail Supervisor, ANZSCO code 621511, is specified as a skill level 4 occupation.

32. In concluding that the requirements of r.5.19(4)(h)(ii)(D) are not met, the delegate had regard to the information submitted by the applicant in relation to the tasks of the nominated position. The delegate acknowledged that the nominated position may perform some of the tasks of a Retail Manager. However, the delegate found that the majority of the tasks are not those that are performed at the higher skill level of Retail Manager. Specifically, the delegate found that the position is not responsible for: setting the overall direction and objectives of the business; formulating, administering and reviewing policy and legislation to ensure the business’ objectives are met; directing and coordinating the allocation of assets and resources; monitoring and evaluating overall organisational and departmental performance, and adjusting policies, rules and regulations to ensure objectives are met or representing the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums and liaising between areas of responsibility. The delegate concluded that the predominant tasks of the nominated position are not those of an ANZSCO skill level 2 Retail Manager position and rather, they are more closely aligned with those of an ANZSCO skill level 4 Retail Supervisor position.

33. ANZSCO provides that the task of a Retail Manager (General) ANZSCO 142111 include:

    ·     determining product mix, stock levels and service standards

    ·     formulating and implementing purchasing and marketing policies, and setting prices

    ·     promoting and advertising the establishment’s goods and services

    ·     selling goods and services to customers and advising them on product use

    ·     maintaining records of stock levels and financial transactions

    ·     undertaking budgeting for the establishment

    ·     controlling selection, training and supervision of staff

    ·     ensuring compliance with occupational health and safety regulations

34. The delegate had regard to the lists of tasks for the nominated position of Retail Store Manager detailed in the employment agreement dated 11 October 2017 and in the business profile and need for the position letter that the applicant submitted to the Regional Certifying Body (RCB). The Tribunal had these documents before it. The Tribunal was also provided with a more recent job description for the nominated position of Retail Store Manager, being the job description attached to employment agreement made between the applicant and the nominee on 16 November 2020. The job description lists the key duties and responsibilities of the Retail Store Manager position as:

    ·     managing all day-to-day operations of the store;

    ·     decide upon the products to be sold in store, introduce new products and discontinue non-performing products;

    ·     control efficiency in all areas of stock management;

    ·     decide upon stock levels and ensure the availability of adequate items in the store;

    ·     maintain appropriate fuel stocks by deciding on ordering frequency and quantity;

    ·     decide upon ordering of stock to maintain optimum level and taking benefit of the opportunities of bulk buys;

    ·     setting the prices for store items and fuel to maintain a competitive presence and meeting financial targets;

    ·     keep an eye on the competition, take appropriate actions to address the same and formulate suitable incentives for promotions;

    ·     keep active consultation and decide upon the service providers for local services and purchases;

    ·     promote the business in local community;

    ·     build a culture of support, customer focus, compliance and community involvement;

    ·     actively engage with customer to identify future prospects and business possibilities;

    ·     staff management, including rostering, hiring & training new staff, conducting staff appraisal;

    ·     lead, coach and develop staff members to ensure continuously up skilling of the team;

    ·     effectively and responsibly delegate within the store;

    ·     ensure that all staff deliver high quality service in all areas of the business;

    ·     managing and motivating the team to increase sales and ensure efficiency;

    ·     service management and, formulating and implementing service standards;

    ·     enforce all regulations and policies relating to safety, security and fire precautions applicable within the store;

    ·     maintain strict hygiene standards throughout the store departments;

    ·     conducting people safety and product safety audits;

    ·     undertake activities for preparing, finalising and adhering to the annual budget;

    ·     provide inputs to management for finalisation of annual budget;

    ·     undertake actions to ensure that key financial, audit and sales targets are met;

    ·     monitor the periodic reports and KPIs, including store performance, financial performance and stock reports;

    ·     identify problems in area of profitability and initiate strategies for improvement;

    ·     representing the organisation at official occasions, negotiations and seminars;

    ·     in store promotion and advertising of goods and services;

    ·     ensure all cash on premises is secured and handled in line with the company policy;

    ·     ensuring compliance with BP Supply Agreement;

    ·     liaising with local authorities.

1. The general description in ANZSCO for Retail Manager (General) (142111) provides that retail managers organise and control the operation of establishments which provide retail services. By contrast, the general description in ANZSCO for Retail Supervisor (621511) provides that retail supervisors supervise and coordinate the activities of retail sales workers.

2. In making the primary decision, the delegate had regard to the role of the directors and the other employees. The delegate noted that the nominated position reported to the area manager who was responsible for four companies which owned four service stations. The area manager reported to the two directors. The delegate also noted the experience of the directors in the operation and management of petrol stations and had regard to the impact that the BP Supply agreement would be likely to have in terms of limiting the capacity of the nominee to perform tasks at the higher level of Retail Manager in terms of imposing strict requirements to be made as a result of using the BP brand.

3. Mr Khan gave evidence that the business is an independent service station and that it is not a franchise. He acknowledged that the applicant has a supply agreement with BP for the purchase of fuel and that the applicant’s service station is badged as a BP service station with its registered business name being BP Murrurundi. Mr Khan also acknowledged that under the agreement the applicant has with BP, BP specifies the price at which the applicant purchases fuel. However, BP does not determine the price at which the applicant sells fuel and BP does not have any other input or influence over the other aspects of the applicant’s business. Mr Khan told the Tribunal that the price at which the applicant sells fuel is determined solely by Mr Virk.

4. The applicant provided the Tribunal with a copy of a BP Branded Privately Owned Sites agreement dated 12 December 2016 between BP Australia Pty Ltd and the applicant. The agreement is signed by the applicant’s directors and by the authorised representative of BP Australia Pty Ltd. The Tribunal examined the agreement carefully. The Tribunal is satisfied, having regard to the agreement and to Mr Khan’s clear and consistent evidence, that the evidence demonstrates that the applicant operates an independently owned and operated service station and convenience store business. The Tribunal accepts that as a result of the agreement between the applicant and BP Australia Pty Ltd the nominated position of Retail Store Manager cannot determine the fuel supplier for the business and that the agreement imposes certain requirements on the nominated position in relation to the BP branding of the business. However, the Tribunal is satisfied that in all other respects the terms of the agreement are consistent with Mr Khan’s description of the relationship between the applicant and BP.

5. In the written submissions dated 26 October 2020, the applicant’s representative addressed, in detail, how the tasks to be performed in the nominated position correspond with the tasks of a Retail Manager (General) (ANZSCO 142111). It is submitted that the nominee, who is currently working in the nominated position, demonstrates decision making at the required skill level of Retail Manager, rather than at the lower skill level of Retail Supervisor. The applicant provided extensive documentation of the tasks performed by Mr Virk in his role of Retail Store Manager. After the hearing the applicant provided the Tribunal with a comparative table listing the key duties and responsibilities of the Retail Store Manager position as identified in the job description of 16 November 2020 against the tasks listed in ANZSCO for the position of a Retail Manager (General) ANZSCO 142111. The Tribunal observed that the material before it is far more extensive than the material that was available to the delegate.

6. The evidence of Mr Khan and Mr Virk at the hearing in relation to the tasks of the role of the Retail Store Manager was detailed and consistent. While Mr Virk has no control over the brand of fuel sold, the Tribunal is satisfied that the evidence establishes that he is solely responsible for determining the product mix and stock levels for the more than 800 products sold at the convenience store. The Tribunal finds that Mr Virk is responsible for deciding whether to introduce or discontinue products and whether to stock products from new suppliers. Mr Virk does not consult Mr Khan before making these decisions. The Tribunal accepts that as the Retail Store Manager, Mr Virk is responsible for budgeting and marketing, price structures and all day-to-day running of the business. He is responsible for managing all funds that come into the business, prepares reports and banks the takings. While the oral and documentary evidence confirms that Mr Virk as Retail Store Manager reports directly to Mr Khan, Mr Virk has full authority and responsibility for operational and managerial matters relating to the applicant’s business. As Retail Store Manager, his responsibilities include advertising and promoting the business’ goods and services and the recruitment, rostering, training and supervision of staff. The Tribunal is satisfied that Mr Virk demonstrated that he undertakes the tasks of the nominated position regularly and anticipates that he will continue to do so.

7. While Mr Virk has daily responsibility for running the business, the Tribunal accepted that, in certain instances, Mr Khan may make final higher-level strategic decisions. In the Tribunal’s view this is to be expected as Mr Khan is the business owner. However, such decisions are made after consultation and recommendation from Mr Virk. As an example, based on the oral evidence of Mr Khan and Mr Virk, the Tribunal accepts that Mr Khan makes the final decision regarding the overall budget target for the profitability of the business. However, Mr Virk is consulted and provides recommendations for setting the overall budget target and he is solely responsible for budgeting in relation to the individual budget components. While the Tribunal accepts that the Retail Store Manager has no control over the supplier of fuel to the business the evidence demonstrates that, as Retail Store Manager, Mr Virk was responsible for changing the mix of fuel products (supplied by BP) that the business offers. Mr Virk instigated the change and researched and presented a proposal to Mr Khan for final approval for the introduction of AdBlue (a diesel exhaust fluid used by truck drivers). This involved the decommissioning and removal of the existing LPG supply tanks and the installation of an AdBlue supply tank and dispenser. Mr Virk undertook all of the work to introduce AdBlue including obtaining quotes, arranging for and overseeing the necessary work and obtaining necessary permits and approval. While Mr Khan is responsible for making the final decision about whether to proceed with substantial repair work to the service station’s driveway, Mr Virk is responsible for researching what work is required and for determining the scope of the work, and whether and how the work should proceed. Mr Virk is the one who did the analysis that resulted in the reduction in the operating hours of the kitchen to evenings only. He made that decision without any involvement on the part of Mr Khan. It is Mr Virk, and not Mr Khan who has the responsibility for all dealings with the local government and workplace authorities.

8. The Tribunal notes Mr Khan’s oral evidence of his limited availability in respect of the business due to his other business interests and the distances between his home and his business interests. The Tribunal is satisfied that the evidence is consistent with Mr Khan’s role being that of a director and not the Retail Store Manager of the business. The evidence was consistent with the applicant’s other director having very limited involvement in the business save for carrying out his duties as a director. The Tribunal is satisfied that the evidence demonstrates that the directors of the applicant, as owners of the business, place great reliance on the Retail Store Manager to run the day to day operations of all aspects of the business. The Tribunal notes that the nominee holds relevant tertiary qualifications and has previous relevant employment experience. The Tribunal is satisfied that the nominee’s qualifications and employment experience are commensurate with those required to undertake the tasks of Retail Manager (General) ANZSCO 142111 (skill level 2).

9. Based on the oral and documentary evidence, the Tribunal is satisfied that the tasks to be performed in the nominated position involve a level of managerial responsibility at a skill level that exceeds that of Retail Supervisor. The Tribunal concluded that the evidence establishes that the tasks to be performed in the nominated position correspond to the specified occupation of Retail Manager (General) ANZSCO 142111 (skill level 2).

10. Accordingly, the requirements in r.5.19(4)(h)(ii)(D) are met.

11. There are no additional specifications in the relevant instrument relating to the nominated position. Accordingly, the requirements in r.5.19(4)(h)(ii)(DA) are met.

    Regional certification

12. The Tribunal must be satisfied that a RCB located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) for the requirements in r.5.19(4)(h)(ii)(F) to be met.

13. As already discussed, the current instrument IMMI 18/037 only applies in respect of nomination applications made on or after 18 March 2018. Therefore, the Tribunal has had regard to the legislative instrument that applied when the applicant lodged the application for approval of the nomination, which was IMMI 16/045. Regional Development Australia Hunter Inc is listed in Schedule A to IMMI 16/045 as an organisation or entity in New South Wales specified for the purposes of r.5.19(4)(h)(ii)(F).

14. The applicant provided a form 1404 issued on 10 November 2017 by Regional Development Australia – Hunter Inc, based in Newcastle New South Wales. The form 1404 states:

    ·There is a need for a paid employee in the nominated position within the business activities of the nominating employer;

    ·The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and

    ·The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.

15. Consistently with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the RCB, it has reached its own conclusions about the matters the subject of the RCB’s advice for the reasons already discussed.

16. Having considered the form and the other evidence, the Tribunal is satisfied that the requirements in r.5.19(4)(h)(ii)(F) are met.

17. The Tribunal, therefore, concluded that the applicant meets all the requirements of r.5.19(4)(h).

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Amanda Ducrou
    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)     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).