National Park Pty Ltd (Migration)

National Park Pty Ltd (Migration) [2020] AATA 4943 (15 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  National Park Pty Ltd
CASE NUMBER:  1805166
HOME AFFAIRS REFERENCE(S):          BCC2016/2488757
MEMBER:De-Anne Kelly
DATE:15 October 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 15 October 2020 at 5:06pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Gift Shop Manager or Retail Manager – tasks to be performed in the position – originally advertised as a supervisor role – considered against the ANZSCO tasks for the occupation – product mix, stock levels and service standards – purchasing and marketing policies and setting prices – promoting and advertising – maintaining records – budgeting – selection, training and supervision of staff – compliance with OH&S regulations – overarching responsibility – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091
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 6 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 27 July 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) and r.5.19(4)(h)(ii) of the Regulations because the tasks to be performed in the nominated position did not correspond to the tasks of an occupation specified by the Minister.
The applicant appeared before the Tribunal on 7 July 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.
The applicant was represented in relation to the review by its registered migration agent, Mr Seddon John Crest MARN: 1101093 of Crest Migration, Surfers Paradise Qld Australia 4217. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
The business, National Park Pty Ltd ABN: 68 009 661 367 trading as O’Reilly’s Rainforest Retreat has been established since 1931 and remained in family hands. It is located at Lamington National Park, Canungra Qld 4275 and employs 98 staff of which 24 are foreign skilled workers. The Managing Director Mr Shane O’Reilly represented the company at the hearing. The company describes its operation as follows:
The O’Reilly family group of companies is comprised of three entities; National Park Pty Ltd, Canungra Valley Pty Lid and Lamington Management Services Pty Ltd.
National Park Pty Ltd is the holding company and Canungra Valley Vineyard Pty Ltd is 87.5% owned by National Park Pty Ltd. The O’Reilly’s businesses are managed by an executive team under the direction of the respective boards of the 2 main companies.
Canungra Valley Vineyards fronts Lamington National Park Road and Canungra Creek and is situated approximately 8 kilometres from the township of Canungra on the road to the O’Reilly’s Rainforest Retreat. The vineyard property was purchased in 1997 and set up as an event/hospitality business built around a small vineyard and rural creek setting and a 1880s old historic homestead.
O’Reilly’s Rainforest Retreat, Cafe and Spa are located 37 kilometres from Canungra Township and is situated in a World Heritage listed National Park. The Resort is the main business of the O’Reilly family and has been operating since 1926.
On 27 July 2016, the applicant lodged a Regional Sponsored Migration Scheme – visa Subclass 187 in the Direct Entry stream for the position of Gift Shop Manager or Retail Manager ANZSCO142111 on a salary of $48,835 in favour of Ms Li Peng.
The letter from the Managing Director dated 9 March 2020 gives an overview of the operation of the business as follows:
The Senior Management org chart shows that there are two main parts of the business as follows:
• Profit Centres
• Support Services
The Senior Management org chart shows the two groups of profit centres are as follows:
• O’Reilly’s Rainforest Retreat – managed by Brendan Long, Retreat Manager
• Canungra Valley Vineyard Pty Ltd – managed by Tamil Mani, Vineyard Manager
The support services (Finance and Sales & Marketing), based in Nerang, QLD 4211, provide advice and services for the O’Reilly’s group of businesses, including the Canungra Valley Vineyard as well as the O’Reillys Rainforest Retreat profit centres. The Sales & Marketing team is dedicated to marketing and promotion initiatives to drive more customers to visit the Canungra Valley Vineyard and O’Reilly’s Rainforest Retreat.
None of the Sales & Marketing Staff based in Nerang are involved in marketing or promotion initiatives related to the Retail Division at O’Reilly’s Rainforest Retreat. This function is entirely the purview of the Retail Manager, Ms Peng.
The senior management org chart also shows that The Café, Dining Room, Conference and Events and Kitchen divisions all report to the First Operations Manager (Damian Pio). The Front Office and Housekeeping Divisions report to the Second Operations Manager (Alistair Brown). The Retail Manager reports directly to the Retreat Manager rather than one of the Operations Managers.
The Retail Manager attends the Heads of Department meetings at O’Reilly’s Rainforest Retreat
Documents including the following were provided with the original application:
1)Acknowledgement of nomination application dated 27 July 2016.
2)Regional Certifying body advice including form 1404 dated 26 July 2016.
3)Letter regarding ‘Need for a paid employee’ dated 23 July 2016 from Managing Director.
4)ASIC company registration.
5)ABN lookup for company.
6)Online application dated 27 July 2016.
7)Payscale salary analysis.
8)Advertisements on seek for position showing 3 candidates.
9)Contract of employment dated 23 July 2016 signed by the nominee and applicant.
10)Certification form – Paying for visa sponsorship.
11)BAS January; February; March; April; May; June; July; August; September; October; November; December 2016.
Documents including the following were provided with the review application:
12)Notification of nomination refusal including ‘Notice of Decision’.
13)Organisation Chart – Retail shop showing Nominated position; Gift shop supervisor Ms S and two Part-time retail attendants, Ms D and Ms J.
14)Heads of Department Meeting – Photo.
15)Organisational Chart – Spa.
16)ABN Lookup.
17)ASIC current and historical extract.
18)Retail Marketing Strategy prepared by the nominee.
19)Promotional Material.
20)Selection of Staff Rosters 2016–2019. This comprised discrete weeks in the following months: July, August, November, December 2016; March, April, August, December 2017; January, February, April, September, November 2018 and January, February 2019.
21)EBA Wages 2019–20.
22)2018 Tax Return.
23)Org Chart – Café.
24)Photos of the nominee in the shop and of tax invoices for goods.
25)Payscale Retail Manager Report – March 2020.
26)2019 Tax Return.
27)Organisational Chart – Restaurant.
28)Spa Products Retail Order.
29)Staff Training report signed by the nominee.
30)2018 P&L – Retail Division, this compares the YTD figures with the Budget YTD and the monthly figures with the monthly Budget. It has line items for apportionments for insurance; photocopying, rental & consumables; rubbish removal; stationery; hire of equipment; leasing; cleaning supplies; computer software & support; electricity etc.
31)BAS – Jan 2018 to Jan 2020.
32)Organisational Chart – Conference.
33)Quote from Supplier.
34)Stocktake reports/emails from the nominee regarding the stocktake for the Spa and Retreat store.
35)Stock Evaluation Report with list of products.
36)Email dated 1 June 2019 from the nominee regarding a meeting with Ms A; emails dated June 2018 advising Ms B that they could chat through internet and also that position has been filled;
37)2019 P&L – Retail Division. This report includes the sales for the Wine shop and the retreat gift shop. It has line items for apportionments for insurance; photocopying, rental & consumables; rubbish removal; stationery; hire of equipment; leasing; cleaning supplies; computer software & support; electricity etc.
38)Employer letter dated 9 March 2020 from the Managing Director in response to s.359(2) letter.
39)2018 Financial Statements.
40)Organisational Chart – Kitchen.
41)Authorisation for Supplier Order by Nominee.
42)Year to date budget review from 1 July 2019 to 30 June 2020 showing the Budget revenue; Budget Wage +on Costs and the Budget Wage/Revenue expressed as a %. This is a comparison of the wage costs as a % of the revenue. A further document attached showing wage costs on a monthly basis.
43)Performance Assessment record dated 25 April ?? on Ms R and signed by the nominee.
44)RCB Approval.
45)FOI Request – Department Response.
46)2019 Financial Statements.
47)Organisational Chart – Housekeeping.
48)Emails dated May 2018 between the nominee and a supplier regarding price and quantity of items.
49)Emails dated February 2019 between the Finance Manager for the Retreat and the nominee with a cc to the Retreat Manager regarding an increase in wage costs.
50)O’Reilly’s Gift Shop Explanation Health and Safety Checklist signed by nominee and another person dated January 2020.
51)Emergency Evacuation Checklist updated by Li Peng 5 February 2020.
52)Job Advertisement Evidence.
53)ASIC Registration Extract.
54)Heads of department meeting minutes dated 28 February 2020 co-signed by the nominee and the Retreat Manager.
55)Promotional material including a Winter Escape package whereby the visitor gets a free O’Reilly’s drink bottle if they visit the retreat.
56)Email from the nominee to the Retreat Manager and the Finance Manager dated April 2018, with an attachment ‘Giftshop roster Plans’ undated and showing the wage; wage + on cost; variance with current wages roster; variance with current wage + on cost roster and weekly actual versus Budget wage expressed as a %. The email states that the global roster is not promising, and the reason is the drop in revenue and the planned rosters are attached. She explains that the total weekly hours have been decreased from 72 hours to 63 hours.
57)Employment Contract.
58)Gift Shop – Daily Operation Checklist updated by Li Peng 5 January 2020.
59)Email dated February 2020 from the nominee to the Retreat Manager stating ‘As discussed on the phone the other day, I have a prospective employee to replace D, his name is Mr W. He will be on the mountain on Sunday. If you would like to be present for his interview, let me know when you are available, otherwise I am happy to interview him without you.’
60)Workplace Agreement 2018.
61)Organisation chart – senior management.
62)Promotional material – Gifts for Mother’s Day – free gift-wrapping.
Documents including the following were provided after the hearing:
63)Legend for the plan of the park amenities.
64)Agreement with the Queensland Government for use of the National Park.
65)Letter from the accountant regarding the financial strength of the company.
66)Guest occupancy list.
67)EBITDA Calculations for the applicant.
68)Letter under s.359A from the Tribunal dated 24 August 2020 inviting the applicant as follows:
The material before the Tribunal indicates that there is a Ms Reynolds working at the gift shop with aspirations of working in management. The Tribunal further notes there is minimal evidence to support previous recruitment efforts. In considering your application for review, the Tribunal must be satisfied that you meet all criterion under r.5.19(4). One of these criteria is r.5.19(4)(h)(ii)(C), which requires that “The position cannot be filled by an Australia citizen or an Australian permanent resident who is living in the same local area as that place”.
 The Tribunal therefore requests further information which support any claims you make that you meet the requirement.
The information should be received by 7 September 2020. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If National Park Pty Ltd cannot provide the information by 7 September 2020, it may ask us for an extension of time in which to provide the information. If National Park Pty Ltd makes such a request, it must be received by us before 7 September 2020.
69)Request from the applicant for extension of time to 5 October 2020.
70)Tribunal letter dated 7 September 2020 granting extension to 6 October 2020.
71)Email dated 6 October 2020 requesting extension to 9 October 2020.
72)Tribunal letter dated 7 October 2020 granting extension to 9 October 2020.
Documents including the following were provided in response to the s.359A letter:
73)Attachment 1 – Job active advertisement for Retail Manager.
74)Attachment 2 – Screen shot of advertisement.
75)Attachment 3 – Seek advertisement for Retail Manager.
76)Attachment 4 – Screen shot of expired advertisement showing 23 applications.
77)Attachment 5 – Advertisement for Retail Manager.
78)Attachment 6 – Screen shot of expired advertisement showing 7 applications.
79)Attachment 7 – New Zealand birth certificate for Ms R.
80)Attachment 8 – Medical certificate for Ms R.
81)Attachment 9 – Employment contract dated October 2020 signed by both applicant and nominee with job description.
Role duties:
(a)Organising gift shop staff, rosters and budget and managing gift shop resources within budget
(b)Reporting to senior management on Retail Division financial performance and targets
(c)Setting budget and sales targets and monitoring budget compliance
(d)Interviewing staff with senior managers and training staff
(e)Arranging, selecting, and presenting gift shop merchandise and managing and determining stock levels and ordering
(f)Organising and delivering retail marketing and promotion initiatives of special items and upselling techniques for particular guests
(g)Setting prices for gift shop merchandise
(h)Ensuring the gift shop is clean and compliant with workplace health and safety.
82)Senior Management staffing structure showing the nominee listed as ‘Retail – Full time – temporary resident’ and nil employees shown as reporting to the position.
83)Letter from the Managing Director dated 8 October 2020.
Adjournments and extensions of time
The applicant requested a number of extensions of time which were duly granted.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant can choose to meet r.5.19(4)(h)(i) or (ii) and has chosen to meet the latter.
The Tribunal must now consider whether the tasks to be performed in the position correspond to the tasks of a Retail Manager, ANZSCO 142111, found in the instrument and as described below in the ANZSCO listed on the Australian Bureau of Statistics (ABS) website. This is necessary to satisfy r.5.19(4)(h)(ii)(D), which provides as follows:
(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;

The Tribunal is mindful that ANZSCO is not prescriptive, however, the Tribunal is also aware of the need for qualitative analysis as stated by Judge Smith in Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 at [30]. His Honour was referring to r.2.72(10)(f) of the Regulations; nonetheless the statement is applicable to the Tribunal’s decision-making regarding r.5.19(4)(h)(ii)(D):
what is required … is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another…
The ANZSCO list of tasks for Retail Manager ANZSCO 142111 are as follows:
Organises and controls the operations of a retail-trading establishment.
1)Determining product mix, stock levels and service standards.
2)Formulating and implementing purchasing and marketing policies and setting prices.
3)Promoting and advertising the establishment’s goods and services.
4)Selling goods and services to customers and advising them on product use.
5)Maintaining records of stock levels and financial transactions.
6)Undertaking budgeting for the establishment.
7)Controlling selection, training and supervision of staff.
8)Ensuring compliance with occupational health and safety regulations.
The Tribunal notes the first employment contract dated 23 July 2016 has a job description which is a ‘cut and paste’ word for word from the ANZSCO for Retail Manager shown above. It is obviously an attempt to generate a migration outcome rather than a genuine attempt to describe the nominated position and as such the Tribunal places no weight on it.
The Tribunal has considered the daily checklist of duties for gift shop staff and it includes the roles expected of a salesperson: counting the float; tidying and preparing the store; logging into the computer; upsell, interact and greet every guest; be vigilant about asset protection; reconcile all the EFTPOS, credit card, cash and receipts; fill in daily cash up sheet and save on computer and return the cash and documentation to reception.
The rostering[1] shows the following changes in the pattern of hours worked by the nominated position from working with another staff member in 2016 with both working together for the full day to the nominee working on her own for most of the day from 2017 onwards. It is noted that the other staff only work while the nominated position has a lunch break and two 15-minute breaks during the workday. (Nom. denotes nominee).
[1] 20) Selection of Staff Rosters 2016–2019. This comprised discrete weeks in the following months: July, August, November, December 2016; March, April, August, December 2017; January, February, April, September, November 2018 and January, February 2019.

Week Mon. Tues. Wed. Thur. Fri. Sat. Sun.

14-Jan-19 Nom - 7.00 Nom - 8.0 Nom - 7.0 Nom - 8.0 Nom - 8.0

Ms H - 8.0 Ms H - 6.75 Ms H - 4.0

Ms A - 1.0 Ms A - 1.0 Ms A - 1.0 Ms L - 1.0 Ms B - 0.5 Ms L - 2.0 Ms L - 1.75

Ms A - 0.5 Ms A -0.5 Ms A - 0.5 Ms L - 0.5 Ms B - 0.5

Ms A - 0.5 Ms A - 0.5 Ms A - 0.5

04-Feb-19 Nom - 8.0 Nom - 8.0 Nom - 8.0 Nom - 8.0 Nom - 8.0

Ms H - 7.5 Ms H -7.5

Ms WT- .5 Ms WT - .5 Ms T - .5 Ms T - .5 Ms T - .5 Ms A - 2.0

Ms B - 1.0 Ms B - 1.0 Ms B -3.0 Ms B - .5

17-Sep-18 Nom - 7.5 Nom - 7.5 Nom - 7.5 Nom - 7.5 Nom - 7.5

Ms M - 3.0

Ms K - 1.5

Ms R - 7.5 Ms R - 7.5

Ms B - 0.5 Ms B - 0.75 Ms B - 1.25 Ms B - 1.25 Ms B - 1.25

Aug-17 Nom - 8.0 Nom - 8.0 Nom - 8.0 Nom - 8.0 Nom -8.0

Ms X - .5 Ms X - .5 Ms M - 8.0 Ms M - 8.0 Ms M - 3.0 Ms M - 3.0

Ms G - 0.5 Ms G - 0.5

Dec-16 Nom - 8.0 Nom - 8.0 Nom - 8.0 Nom - 8.0 Nom - 8.0

Ms E - 7.0 Ms E - 7.0 Ms R - 4.5 Ms R - 4.5 Ms R - 4.0

Ms K - 5.0 Ms K - 5.0 Ms K - 5.0

Ms E - 3.0 Ms E - 7.0 Ms E - 7.0

This is confirmed by the email dated April 2018[2] which explains that the total weekly hours have been reduced from 72 to 63 hours. The Retreat Gift Shop has opening hours 9.00 – 16.00 Monday to Friday and 8.00 – 16.30 on weekends. It is evident from the Gift Shop – Daily Operation Checklist[3] that there is at least a half hour of duties before and after the opening hours such as counting the float; logging into Bpoz; cleaning and checking stock etc. Taking this into account the weekly working hours are in the order of 59 hours and since the total weekly hours have been reduced to 63 hours it follows that there can only be one person in attendance for the majority of the time in the Retreat shop on any given day of the week.
[2] 56) Email from the nominee to the Retreat Manager and the Finance Manager dated April 2018, with an attachment ‘Giftshop roster Plans’ undated and showing the wage; wage + on cost; variance with current wages roster; variance with current wage + on cost roster and weekly actual versus Budget wage expressed as a %. The email states that the global roster is not promising, and the reason is the drop in revenue and the plan rosters are attached. She explains that the total weekly hours have been decreased from 72 hours to 63 hours.
[3] 58) Giftshop – Daily Operation Checklist updated by Li Peng 5 January 2020.
The original advertisement[4] for the position states, ‘Retail Gift Shop Supervisor’ and lists the qualities as follows:
[4] 8) Advertisements on seek for position showing 3 candidates.
Good computer skills - data and invoice entry
Works well under pressure
Ability to work in a team and autonomously
Capable of cash ups and operating Bepoz
Polished personal presentation
Excellent communication and sales skills
Positive and enthusiastic attitude
Authentic and friendly disposition
Detail Orientated
Great time management
Two years’ experience in a similar role
We have Full Time, Permanent Part-Time and casual positions available . Subsidised accommodation and meal packages are available. Weekend work applies. Lamington NP is located 90mins from Surfers Paradise or two hours south of Brisbane CBD.
You will be asked the following questions when you apply:
Are you eligible to work in Australia?
How many years’ experience do you have in a similar role?
When are you available to start?
What days are you available to work?
The Tribunal is concerned that this position was initially advertised as a supervisor role and not a management role and that the duties to be undertaken did not include the tasks that are now attributed to the position namely: determining product mix, setting prices, setting budget and sales targets and monitoring budget compliance and organising and delivering retail marketing and promotion initiatives to name a few.
There is a photo[5] of the weekly Head of Department meeting on 28 February 2020 showing the Operations Manager; Dining Room Supervisor; Front Office Manager; Activity Manager; Junior Sous Chef and the nominee. The Tribunal considers that this photo and the weekly meeting are evidence that the management team oversee the operations of the Retreat on a weekly basis and are responsible for overall decision making.
[5] 14) Heads of Department Meeting – Photo.
The Tribunal has considered the job description in the advertisement and the job description in the new employment contract dated October 2020 but finds that this is inconsistent with the organisation chart[6] submitted in October 2020 which shows no staff under the nominated position and also the analysis of the roster above which shows that the nominee has no staff to supervise when she is working in the shop as she has been working on her own since 2017 and other staff only work in the shop when she takes her lunch break and two 15-minute breaks during the work day. Other staff work when the nominee takes her days off.
[6] 82) Senior Management staffing structure showing the nominee listed as ‘Retail – Full time – temporary resident’ and no employees shown as reporting to the position.
Assessing the nominated tasks against the ANZSCO tasks
In undertaking a qualitative analysis of the tasks of the nominated position, the Tribunal is not simply accepting the tasks as given in the job description but determining from the evidence whether these tasks are undertaken fully, partially or not at all.
The Tribunal has allocated a weighting to each ANZSCO task such that if it is undertaken fully by the nominated position such that if the task of the nominated position corresponds to the ANZSCO task then a weighting of 1.00 is given and if it is only partially undertaken then a pro rata weighting is given and if it is not undertaken at all then a weighting of 0.00 is given signifying that the task of the nominated position does not correspond to the task of the ANZSCO position.
The job description tasks from the latest employment contract dated October 2020 as below will be considered against the ANZSCO tasks for Retail Manager:
Role duties:
(a)Organising gift shop staff, rosters and budget and managing gift shop resources within budget
(b)Reporting to senior management on Retail Division financial performance and targets
(c)Setting budget and sales targets and monitoring budget compliance
(d)Interviewing staff with senior managers and training staff
(e)Arranging, selecting, and presenting gift shop merchandise and managing and determining stock levels and ordering
(f)Organising and delivering retail marketing and promotion initiatives of special items and upselling techniques for particular guests
(g)Setting prices for gift shop merchandise
(h)Ensuring the gift shop is clean and compliant with workplace health and safety.
Task 1 of the ANZSCO
Task 1 of the ANZSCO is three sub-tasks as follows: 1) Determining product mix; 2) Determining stock levels; and 3) Determining service standards. The Tribunal finds that the following task of the nominated position aligns with this ANZSCO task, namely:
e)Arranging, selecting, and presenting gift shop merchandise and managing and determining stock levels and ordering.
The Tribunal considers that this nominated position task aligns with the first two sub-tasks of the ANZSCO namely: 1) Determining product mix; and 2) Determining stock levels.
The Tribunal has considered whether the final of the three sub-tasks in ANZSCO task 1, namely ‘determining service standards’, aligns with the job description but can find no mention of the setting of service standards by the nominated position. Service standards may cover a broad range of matters which were not canvassed in the job description, such as: returned goods policy; damaged goods policy; whether credit will be extended and to whom; acceptable methods of payment; wearing of uniforms; presentation; procedures for handling complaints etc. The Managing Director’s letter of 9 March 2020 states the nominated position determines product mix and stock levels and the Tribunal concurs with this statement as it is consistent with the latest job description in the employment agreement dated October 2020.
Since two of the three sub-tasks of ANZSCO task 1 are undertaken by the nominated position, the Tribunal gives it a weighting of 0.66.
Task 2 of the ANZSCO
Task 2 of the ANZSCO is ‘2) Formulating and implementing purchasing and marketing policies and setting prices’ and has five sub-tasks, namely: ‘formulating purchasing policies’; ‘implementing purchasing policies’; ‘formulating marketing policies’; ‘implementing marketing policies’; and ‘setting prices.’
The Tribunal finds that the following tasks of the nominated position partially align with this ANZSCO task, namely:
(e)Arranging, selecting, and presenting gift shop merchandise and managing and determining stock levels and ordering
(f)Organising and delivering retail marketing and promotion initiatives of special items and upselling techniques for particular guests
(g)Setting prices for gift shop merchandise
The Tribunal does consider that the position ‘formulates purchasing policies’ and ‘implements purchasing policies’ for the business.
It is noted from Attachment 10 – Senior Management Organisation Chart that National Park Pty Ltd has under the Managing Director a Support Services Unit based at Nerang and under this unit a Sales and Marketing Unit. The Tribunal considers that this Sales and Marketing Unit would have overall responsibility for promoting the entire National Park enterprise and the operations within it including the retail store. This is reinforced by the original advertisement for the nominated position which did not include the tasks of ‘formulating marketing policies’ and ‘implementing marketing policies.’ The Tribunal does accept that the position arranges promotions for special items such as Mother’s Day specials however, this is not as significant as the volume of weekly promotional and advertising material available from the Sales and Marketing Unit which would provide overall promotion of the entire enterprise. The Tribunal goes into far more detail in examining the matter of marketing and who is responsible for it in ‘Task 3 of the ANZSCO’ below and rather than copying those findings and considerations into the consideration of this task 2 of the ANZSCO, it applies the same reasoning for both.
The Tribunal accepts that the nominated position has responsibility for ‘setting prices.’
Since three of the five sub-tasks of ANZSCO task 2 are undertaken by the nominated position, the Tribunal gives it a weighting of 0.66.
Task 3 of the ANZSCO
Task 3 of the ANZSCO is ‘Promoting and advertising the establishment’s goods and services’ and comprises two sub-tasks, namely ‘promoting the establishment’s goods and services’ and ‘advertising the establishment’s goods and services.’
The Tribunal finds that the following tasks of the nominated position partially align with this ANZSCO task, namely:
(f)Organising and delivering retail marketing and promotion initiatives of special items and upselling techniques for particular guests
The Tribunal has examined the website for O’Reilly’s Rainforest Retreat and notes tabs labelled:
About
Blog
School Holiday
Dining
Wildlife
Retreat Map
Walking Tracks
National Park
FAQ
Shop (This is not the Giftshop but the wine shop selling wines from O’Reilly’s vineyard and shows an extensive wine collection with online price lists.)
Contact
Terms
Book Now
Packages
Rooms
Activities
Campgrounds
Business Events
Weddings
Spa
Events
Vineyards
Vouchers
The website is highly professional with superb photographs of the attractions and the natural environment. It is also very detailed with separate webpages under each tab. It has prices for all the attractions, and this would require a team effort to continually update the website as prices changed and specials such as ‘Spring Special’ and ‘School Holiday Fun’ to name a few of the numerous seasonal attractions on offer were added to the website. The only mention of the retail store is under the Dining tab where three options are listed: The Rainforest Bar; The Dining Room and O’Reilly’s Mountain Café and Gift Store. There is information regarding the Café but the only mention of the Gift Shop is its opening hours of 9.00 – 16.00 Monday to Friday and 8.00 – 16.30 on weekends. No evidence has been provided of a website or Facebook page for the Retreat gift store.
The Tribunal has examined the ‘Marketing Strategy 2019/20 presented by Li Peng – May 2019’ and notes initiatives listed namely, ‘Increase guests length of shopping period’ by updating and renovating the shop; ‘Increase frontline sales’ by cross promotion between retreat and giftshop and cross promotion between vineyard giftshop and retreat giftshop; ‘Increase online shopping sales’ by replanning the website, website design and creating a Facebook page; ‘Build and maintain a segmented customer database’; ‘Increase return guest visitation’ by creating a discount card, referral partner shortlist, design marketing kit, print marketing kit and building brand awareness and sourcing from more local suppliers rather than overseas suppliers. There is scant evidence that any of these strategies have been put into action and some of them have plainly not been undertaken because the website for the Retreat is undertaken by the professional Sales and Marketing Unit and there is little evidence of a Facebook page for the gift shop.
The Tribunal notes promotional material such as ‘O’Reilly’s Birthday Gift Bag’ flyer; a flyer for ‘Tea Towels for $15.00’ and Mother’s Day specials etc.
The Tribunal notes the letter from the Managing Director dated 9 March 2020 which states:
As part of this superb initiative, Ms Peng formulated and implemented the following marketing initiatives:
• Limited offer O’Reilly’s Birthday Gift Bags
• Two-day O’Reilly’s Birthday Coffee Mug special
• O’Reilly’s Flight Bird Show vouchers
• Mother’s Day retail promotion and free gift wrapping offer (see Att 27 – Mother’s Day retail promotion artwork)
• Free gift with second purchase retail initiative
• O’Reilly’s Nature Lover membership program for customers spending more than $300 at the O’Reilly’s Rainforest Retreat Giftshop – with free Birds of Prey Show program
• Cross promotion initiative between Vineyard Giftshop and O’Reilly’s Rainforest Retreat Giftshop
• Online retail initiative including website redesign, Facebook page and newsletter template offering retail offers and specials.
• Giftshop membership discount card
• Rebranding products with O’Reilly’s Rainforest Retreat logo
Ms Peng, designed and printed promotional posters and displayed them on the notice board brochure board as well as the Expo Display at the Nerang office and prominent locations at our retreat in order to promote retail sales.
These are similar to the initiatives listed in the ‘Marketing Strategy 2019/20 presented by Li Peng - May 2019’. The Tribunal can find evidence of some promotional measures taken but can find scant evidence of other initiatives such as the website redesign and Facebook page that have supposedly been undertaken by the nominated position. In fact, this advice is inconsistent with the comprehensive website of the Retreat which is plainly undertaken by the professional Sales and Marketing Unit.
In the ‘Marketing Strategy 2019/20 presented by Li Peng - May 2019’ it states that it will engage in at least one marketing activity. Examples include ‘contacting with current supplier, updating stock information or revising the print or flyer advertising. The manager will spend 8.30 – 9.30 am on marketing, 5 days a week’. The Tribunal has considered this statement and finds that the first two initiatives go more to ‘formulating and implementing purchasing and marketing policies’ and ‘maintaining records of stock levels’.
The Tribunal has considered the letter from the Managing Director dated 9 March 2020 which states:
The support services (Finance and Sales & Marketing), based in Nerang, QLD 4211, provide advice and services for the O’Reilly’s group of businesses, including the Canungra Valley Vineyard as well as the O’Reillys Rainforest Retreat profit centres. The Sales & Marketing team is dedicated to marketing and promotion initiatives to drive more customers to visit the Canungra Valley Vineyard and O’Reilly’s Rainforest Retreat.
None of the Sales & Marketing Staff based in Nerang are involved in marketing or promotion initiatives related to the Retail Division at O’Reilly’s Rainforest Retreat. This function is entirely the purview of the Retail Manager, Ms Peng.

The Tribunal notes that the Managing Director who was forthright at the hearing, states that the Sales and Marketing Unit are not involved in marketing and promotion initiatives related to the Retail Division and that is entirely the purview of the nominee. The Tribunal accepts the Managing Director believes this to be the case and it may appear to be the case in the limited sense of the posters; flyers; special offers; rebranding etc that are undertaken by the nominee. However, this view fails to appreciate that it is the overarching comprehensive advertising, marketing and promotional campaign by the Sales and Marketing Unit that draws visitors and guests to Canungra and to O’Reilly’s Rainforest Retreat who then walk by the Retreat store. Put another way, if the Retreat store were entirely independent and there was no O’Reilly’s Rainforest Retreat and therefore no Sales and Marketing Unit the Tribunal considers that the limited promotional initiatives of the nominee would draw reduced, if any, visitors and guests to Canungra and ultimately to the store.
The Tribunal accepts that the position prepares flyers, in-store promotional material for special price deals and has undertaken some promotional initiatives although there was scant evidence of some of this provided but considers that these are not as significant as the wide-ranging and comprehensive advertising, marketing and promotional campaign provided across the entire Retreat by the Sales and Marketing Unit which draws guests and visitors to Canungra, to O’Reilly’s Rainforest Retreat and thus to the Retreat store.
The Tribunal accepts that the nominated position has responsibility for ‘promoting the establishment’s goods and services’ but not for ‘advertising the establishment’s goods and services’ as this is undertaken by the Sales and Marketing Unit.
Since one of the two sub-tasks of ANZSCO task 3 is undertaken by the nominated position, the Tribunal gives it a weighting of 0.50.
Task 4 of the ANZSCO
Task 4 of the ANZSCO is ‘4) Selling goods and services to customers and advising them on product use’ and comprises two sub-tasks, namely ‘selling goods and services to customers’ and ‘advising them on product use’.
The Tribunal considers that the position’s tasks as below, correspond to task 4 of the ANZSCO. A weighting of 1.00 is given for this task:
(f)Organising and delivering retail marketing and promotion initiatives of special items and upselling techniques for particular guests.
The applicant made submissions regarding this task; however, the Tribunal has found that the nominated position’s tasks correspond with the ANZSCO, therefore the submissions on this task are accepted by the Tribunal.
Task 5 of the ANZSCO
Task 5 of the ANZSCO is ‘5) Maintaining records of stock levels and financial transactions’ and this is made up of two sub-tasks: ‘maintaining records of stock levels’ and ‘maintaining records of financial transactions.’
The Tribunal considers that the position’s task as below is the only one that partially aligns with this task and would correspond with ‘maintaining records of financial transactions.’ There is no mention in the job description of ‘maintaining records of stock levels’.

61. The Tribunal has considered the Stocktake reports[7] and the Stock Evaluation Report[8] and it is clear that the nominee has undertaken the stocktake in 2020 for the Retreat gift store and the Spa. There is no evidence that the nominee has undertaken the stocktake in previous years. The stocktake evidence is consistent with the Managing Director’s letter of 9 March 2020 where it is stated ‘Managing Stock levels – The Retail Manager is responsible for organising and executing regular and accurate stock take assessments for both the O’Reilly’s Rainforest Retreat Gift Shop as well as the Lost World Retreat’.
[7] 34) Stocktake Reports/Emails from the nominee regarding the stock take for the Spa and Retreat store dated 2020.
[8] 35) Stock Evaluation Report with list of products and a page with Clothing listed and quantities with ‘counted by Li Peng 18.02.2020’>

The Oxford Online Dictionary defines maintaining as: cause or enable (a condition or situation) to continue.
The Tribunal considers that ‘maintaining records of stock levels’ means that the records of stock levels would continue on a regular basis rather than just a stocktake at 30 June 2020 or any other year. It notes that the original and current job description do not include a reference to maintaining records of stock levels.
The new employment contract signed by both the applicant and nominee and dated October 2020 is a legal document agreed to and signed by both parties and includes the job description which does not make reference to maintaining records of stock levels. The Tribunal finds that the nominated position is not maintaining records of stock levels but is maintaining records of financial transactions.
Since one of the two sub-tasks of ANZSCO task 5 is undertaken by the nominated position, the Tribunal gives it a weighting of 0.50.
Task 6 of the ANZSCO
Task 6 of the ANZSCO is ‘6) Undertaking budgeting for the establishment.’ It is noted that the applicant’s job description tasks that partially align with this task are the following:
a) Organising gift shop staff, rosters and budget and managing gift shop resources within budget
c) Setting budget and sales targets and monitoring budget compliance
The Oxford Online Dictionary definition is as follows: ‘undertaking’ is a ‘task that is taken on; an enterprise’ and ‘Budgeting is an estimate of income and expenditure for a set period of time’.
The Tribunal considers that ‘undertaking budgeting for the establishment’ means that estimating the income and expenditure for a set period of time for the establishment must be undertaken by the position. It is noted that the definition is not adhering to, complying with, working within or similar definitions that would imply that the position is given a budget prepared by others and complying with that budget.
The Tribunal notes that the Organisation chart shows the nominated position responsible through the line of management to the Retreat Manager and through this position to the Profit Centres – CVV & Retreat and then to the Managing Director. It is implausible that with such a layer of senior management over the nominated position that it would be solely responsible for preparing the budget for the store. The Tribunal notes that ‘Head of Department Meeting Minutes – 28.02.2020’[9] and co-signed by the nominee and the Retreat Manager states ‘We are in budget for the year’ and ‘We will arrange a time to interview TW next week to replace D’. This indicates that the Retreat Manager undertakes the budget process and interviews prospective staff with the nominee.
[9] 54) Heads of department meeting Minutes dated 28 February 2020 co-signed by the nominee and the Retreat Manager.
This is reinforced by the photo of the weekly Head of Department meeting on 28 February 2020 showing the Operations Manager; Dining Room Supervisor; Front Office Manager; Activity Manager; Junior Sous Chef and the nominee. The Tribunal considers that the management team oversee the operations of the Retreat on a weekly basis and are responsible for decision making. Again, it is implausible that with such a professional senior management team that they would encourage the nominated position to prepare the budget without oversight by the management team. The Tribunal accepts that the nominated position prepares the sales targets for the Giftshop.
The Tribunal has considered the 2018[10] and 2019[11] P&L for the Retail Division and notes that this is a comprehensive document with line items for apportionments towards the overhead fixed costs such as insurance; photocopying, rental & consumables; rubbish removal; stationery; hire of equipment; leasing; cleaning supplies; computer software & support and electricity. The nominated position would not have access to figures for these fixed overheads and the preparation of this would require input from the financial officer and the Retreat Manager both of whom are regularly cc’ed into emails by the nominee.
[10] 30) 2018 P&L - Retail Division, this compares the YTD figures with the Budget YTD and the monthly figures with the month Budget. It has line items for apportionments for insurance; photocopying, rental & consumables; rubbish removal; stationery; hire of equipment; leasing; cleaning supplies computer software & support; electricity.
[11] 37) 2019 P&L - Retail Division. This report includes the sales for the Wine shop and the retreat gift shop. It has line items for apportionments for insurance; photocopying, rental & consumables; rubbish removal; stationery; hire of equipment; leasing; cleaning supplies computer software & support; electricity etc.
The Tribunal has considered the Year to Date budget review[12] which refers to the budgeting for wage costs and wage + on costs. It appears that the budget is regarding wages cost and the number of staff rostered and this is reinforced by the emails[13] between the Finance Manager, the Retreat Manager and the nominee which deal with an increase in wage costs and a need to reduce the total weekly shop hours from 72 to 63 hours.
[12] 42) Year to date budget review from I July 2019 to 30 June 2020 showing the Budget revenue; Budget Wage +on Costs and the Budget Wage/Revenue expressed as a %. This is a comparison of the wage costs as a % of the revenue. A further document attached showing wage costs on a monthly basis.
[13] 49) Emails dated February 2019 between the Finance manager for the Retreat and the nominee with a cc to the Retreat Manager regarding an increase in wage costs. 56) Email from the nominee to the Retreat Manager and the Finance Manager dated April 2018, with an attachment ‘Giftshop roster Plans’ undated and showing the wage; wage + on cost; variance with current wages roster; variance with current wage + on cost roster and weekly actual versus Budget wage expressed as a %. The email states that the global roster is not promising, and the reason is the drop in revenue and the plan rosters are attached. She explains that the total weekly hours have been decreased from 72 hours to 63 hours.
It is noted that the Managing Director’s letter of 9 March 2020 states ‘As Retail Manager, Ms Peng is responsible for the Retail Division wage and revenue analysis, setting budgets for the Retail Division…’ The Tribunal finds this is inconsistent with the evidence given at the hearing which was that the nominated position undertook budgeting in conjunction with Brendan (the Retreat Manager). The Tribunal considers the nominated position has some input into the budget process but is not solely responsible for ‘undertaking budgeting for the establishment’ and as such gives a weighting of 0.50 for this ANZSCO task 6.
Moreover, even if the Tribunal accepted that the nominated position undertook the budgeting and gave this task a weighting of 1.00, it would not change the fact that the other major tasks are not undertaken by the nominated position and as per the analysis below, the tasks of the nominated position would not correspond to the tasks of the ANZSCO position Retail Manager.
Task 7 of the ANZSCO
Task 7 of the ANZSCO is ‘7) Controlling selection, training and supervision of staff’ and comprises three sub-tasks: ‘controlling selection of staff’; ‘controlling training of staff’ and ‘supervision of staff’.
The Tribunal considers the nominated tasks that partially align with the ANZSCO task 7 are the following:
a)Organising gift shop staff, rosters and budget and managing gift shop resources within budget
d)Interviewing staff with senior managers and training staff
It is considered that the nominated position does not ‘control selection of staff’ as job applicants are interviewed by the Retreat Manager and he as the positions direct superior would have the final judgement on who is employed. It is not clear what ‘organising gift shop staff’ means but taken in the light of the roster which shows the nominee working on her own since 2017 it does not mean ‘supervision of staff’ since the other staff do not work when she is present in the store. The Tribunal does accept that the nominated position is ‘controlling training of staff’. As such the Tribunal considers that one out of the three sub-tasks of ANZSCO task 7 is undertaken by the nominated position and has given a weighting of 0.33 to this task.
The Tribunal notes the Performance assessment[14] whereby the employee has answered questions about their performance and career progress and aspirations, and the nominee has assessed the employees. The Tribunal considers this does not go to ‘Control selection of staff’ and ‘supervision of staff’ since the nominated position has no staff in the shop to supervise when she works in the shop and the Retreat Manager undertakes the selection process with the nominated position.
[14] 43) Performance Assessment record dated 25 April ?? on Ms R and signed by the nominee.
It is noted that the Managing Director’s letter of 9 March 2020 states ‘As Retail Manager, Ms Peng is required to interview and select staff, prepare daily operation checklists for the Retail division as well as write daily to-do lists for staff and conduct Staff probation reviews”. The submission refers to Attachments 35 and 39 as evidence however it was not clear which of the attachments were numbered 35 and 39. The Tribunal notes that ‘Head of Department Meeting Minutes – 28.02.2020’ and signed by the nominee and the Retreat Manager states ‘We are in budget for the year’ and ‘We will arrange a time to interview TW nest week to replace D’. This indicates that the Retreat Manager undertakes the interview process with the nominee and the nominated position is not responsible for controlling selection of staff. The Tribunal gives weight to the job description attached to the new employment contract signed by both the applicant and nominee and dated October 2020 as this is a legal document agreed to and signed by both parties.
Task 8 of the ANZSCO
Task 8 of the ANZSCO is ‘8) Ensuring compliance with occupational health and safety regulations’ and the following task for the position corresponds to this task: ‘h) Ensuring the gift shop is clean and compliant with workplace health and safety’. As a result, the Tribunal gives a weighting of 1.00 to this task.
The applicant made submissions regarding this task; however, the Tribunal has found that the existing position’s tasks correspond with the ANZSCO, therefore the submissions on this task are accepted.
Overarching responsibility
The remaining task to consider is the overarching responsibility in the ANZSCO, Retail Manager, namely ‘Organises and controls the operations of a retail-trading establishment’. The Tribunal accepts this is the overall responsibility of the position but believes because it is listed in the ANZSCO it must be considered. Implicit in this overarching responsibility is that the position’s tasks correspond to the eight tasks listed in the ANZSCO. It would be unreasonable to find that a significant proportion of the nominated positions tasks and particularly the higher level tasks do not correspond to the ANZSCO but that the position fulfils the overarching responsibility of a retail manager who ‘organises and controls the operations of a retail-trading establishment’.
The Tribunal found that the higher level tasks which carry more responsibility and would be associated with managerial responsibility, namely: setting service standards; formulating and implementing marketing policies; advertising the establishment’s goods and services; undertaking budgeting for the establishment and controlling selection and supervision of staff do not correspond with the nominated position or partially correspond. The Tribunal therefore finds that the nominated position does not have overarching responsibility for and does not ‘organise and control the operations of a retail-trading establishment’. As such, the Tribunal gives this overall responsibility a weighting of 0.00.
The Tribunal will now return to the tasks of the position that correspond to the tasks of an ANZSCO 142111 Retail Manager. The table below shows the weighting given to each task by the Tribunal:

Tasks of Retail Manager ANZSCO 142111

Weighting

Overarching responsibility 0.00

Task 1 0.66

Task 2 0.66

Task 3 0.50

Task 4 1.00

Task 5 0.50

Task 6 0.50

Task 7 0.33

Task 8 1.00

9 Tasks in total 5.15

% of tasks that correspond to 9 ANZSCO tasks 57%

The Tribunal finds that of the tasks to be performed in the nominated position, only 5.15 or 57% of the tasks correspond with the nine tasks of the ANZSCO 142111 position of Retail Manager.
The Oxford Online Dictionary provides the following definition of correspond: ‘Have a close similarity; match or agree almost exactly.’ A 57% alignment would not reasonably be said to be a ‘close similarity’ or to ‘match or agree almost exactly’.
Even if the Tribunal were to accept that the nominated position undertakes budgeting for the establishment and gave that task a weighting of 1.00, it would mean that a total of 5.65 of the nominated position’s tasks correspond to the nine ANZSCO tasks of a Retail Manager because the overarching responsibility would still not be met as the majority of higher tasks would not be performed by the position, and it would find that 63% of the tasks correspond. A 63% alignment would not reasonably be said to be a ‘close similarity’ or to ‘match or agree almost exactly’ so this would not materially affect the decision of the Tribunal.
Therefore, the tasks to be performed in the nominated position do not correspond to the tasks of the occupation Retail Manager, ANZSCO 142111, specified by the Minister in writing. Therefore r.5.19(4)(h)(ii)(D) and r.5.19(4)(h)(ii) are not met.
Accordingly, the requirements of r.5.19(4)(h) are not met.
The position cannot be filled
The Tribunal needs to consider whether the position can be filled by an Australian citizen or permanent resident who is living in the same local area as Canungra such that r.5.19(4)(h)(ii)(C) is satisfied:
(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.
The Managing Director described the difficulties in finding a suitable candidate and that the nominee was the only suitable person to fill the position at the time of application.
It is noted that one of the women who works in the gift shop Ms R states on her ‘Operational HR: performance management’ report of April 2020 that she would like ‘more responsibility in the gift shop’; ‘like to aim for a supervisory position’ and strengthen her ‘understanding of managerial duties, budget targets and such so I can reach goals and targets easier’. She states, ‘with my six years of retail experience I do not feel that my abilities are being utilised’ and ‘I would like to be in a supervisor or management role but also would love to still be helping in conferencing, weddings and activities’.
The Tribunal is very concerned that this woman who is an Australian citizen or permanent resident, as there is no mention of her being sponsored in some manner by the company, is asking the company for a managerial role and wants more responsibility in the gift shop and her requests are being overlooked by the company in favour of sponsoring a foreign worker. In response to the s.359A letter inviting the applicant to comment on this concern, the applicant advertised the position again and advised in their letter of 8 October 2020 that in total they had 30 applicants and the nominee was found to be the most suitable candidate.
The Managing Director in his letter of 8 October 2020 advised that Ms R has a medical condition that would preclude her from filling the role of Retail Manager and has taken a receptionist role in another part of the retreat.

As such the Tribunal is not making a finding on whether r.5.19(4)(h)(ii)(C) is satisfied.
Accordingly, the requirements of r.5.19(4)(h) are neither met nor not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
De-Anne Kelly
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ 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 4943

15 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Week	Mon.	Tues.	Wed.	Thur.	Fri.	Sat.	Sun.
14-Jan-19	Nom - 7.00	Nom - 8.0	Nom - 7.0	Nom - 8.0	Nom - 8.0
Ms H - 8.0	Ms H - 6.75	Ms H - 4.0
Ms A - 1.0	Ms A - 1.0	Ms A - 1.0	Ms L - 1.0	Ms B - 0.5	Ms L - 2.0	Ms L - 1.75
Ms A - 0.5	Ms A -0.5	Ms A - 0.5	Ms L - 0.5	Ms B - 0.5
Ms A - 0.5	Ms A - 0.5	Ms A - 0.5
04-Feb-19	Nom - 8.0	Nom - 8.0	Nom - 8.0	Nom - 8.0	Nom - 8.0
Ms H - 7.5	Ms H -7.5
Ms WT- .5	Ms WT - .5	Ms T - .5	Ms T - .5	Ms T - .5	Ms A - 2.0
Ms B - 1.0	Ms B - 1.0	Ms B -3.0	Ms B - .5
17-Sep-18	Nom - 7.5	Nom - 7.5	Nom - 7.5	Nom - 7.5	Nom - 7.5
Ms M - 3.0
Ms K - 1.5
Ms R - 7.5	Ms R - 7.5
Ms B - 0.5	Ms B - 0.75	Ms B - 1.25	Ms B - 1.25	Ms B - 1.25
Aug-17	Nom - 8.0	Nom - 8.0	Nom - 8.0	Nom - 8.0	Nom -8.0
Ms X - .5	Ms X - .5	Ms M - 8.0	Ms M - 8.0	Ms M - 3.0	Ms M - 3.0
Ms G - 0.5	Ms G - 0.5
Dec-16	Nom - 8.0	Nom - 8.0	Nom - 8.0	Nom - 8.0	Nom - 8.0
Ms E - 7.0	Ms E - 7.0	Ms R - 4.5	Ms R - 4.5	Ms R - 4.0
Ms K - 5.0	Ms K - 5.0	Ms K - 5.0
Ms E - 3.0	Ms E - 7.0	Ms E - 7.0

Tasks of Retail Manager ANZSCO 142111	Weighting
Overarching responsibility	0.00
Task 1	0.66
Task 2	0.66
Task 3	0.50
Task 4	1.00
Task 5	0.50
Task 6	0.50
Task 7	0.33
Task 8	1.00
9 Tasks in total	5.15
% of tasks that correspond to 9 ANZSCO tasks	57%