NEEV PTY LTD (Migration)

NEEV PTY LTD (Migration) [2020] AATA 5206 (21 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  NEEV PTY LTD
CASE NUMBER:  1801922
HOME AFFAIRS REFERENCE(S):          BCC2017/730820
MEMBER:Warren Stooke AM
DATE:21 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 21 August 2020 at 4:28pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Retail Manager – no adverse information – actively and lawfully operating a business in Australia – genuine need for the position – financial capacity of the business to employ the nominee for at least 2 years full time – no less favourable terms and conditions of employment – decision under review set aside

LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 January 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 23 February 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).
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 that the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because the delegate was not satisfied on the evidence that the application could demonstrate that the nominated position would hold the overall control and level of responsibility to undertake the tasks of Retail Manager Skill Level 2.
The applicant appeared before the Tribunal on 29 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Patel, the nominee.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 11 January 2018 and that he understood the content of the decision. In this regard, the applicant stated that the application was refused by the Department for the position of Retail Manager because it was considered that the position was not a genuine position and that the Retail Manager position was confused with the position of Retail Supervisor.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant, who is a Director of the company, operates a Red Rooster Franchise in Market Place Wagga Wagga. In this regard, the applicant provided evidence that the franchise has been registered with ASIC since 16 April 2015, with an ABN of 32 104 969 828. It was also stated that the franchise with Red Rooster commenced in 2011.
The applicant stated that the franchise employs 13 to 15 employees, that includes 2 full-time employees.
The applicant stated that the business operates eight different franchises and his role is to provide oversight of the business by providing guidance and setting benchmarks. In this regard, the Director is responsible for the financials of the business and budgets.
The applicant provided evidence that the applicant, as the Restaurant Manager/Retail Manager, performs the following duties:
a.Day to day management;
b.Compliance with legal obligations;
c.Financial banking;
d.Store ordering;
e.Hiring, training and discipline of employees;
f.Development of a customer driven culture and a suggestive selling environment;
g.Plan and implement special events;
h.Ensure compliance with health and safety requirements for food handling and staff in accordance with the franchise obligations;
i.Communicate changes to food preparation formulas with staff;
j.Follow policies and procedures outlined in the franchise manual;
k.Ensure inventory levels are properly maintained and order to meet sales volumes;
l.Maintain financial records, analyse performance of the store and report to the directors and create an action plan to improve store performance;
m.Maintain company and customer expectations by providing an appealing store condition;
n.Accepts responsibility for compliance and training in relation to occupation, health and safety.
In addition, the Director provided evidence that the Retail Manager maintains stock levels and undertakes ordering for the business and that the nominee is responsible for store promotions (as directed by head office in Sydney) and initiatives like Christmas promotions, which are checked off with the Director.
The applicant stated that the nominee is responsible to reconcile receipts and provides this data by email to the Director each night on a spreadsheet.
The applicant stated that the nominee has no involvement in the relationship with the franchisor, which is the Directors role.
The applicant stated that the nominee was provided with a contract that commenced on 6 February 2017 and that the nominee is paid a salary of $52,000 plus superannuation, which is paid into the REST fund.
The applicant stated that the nominee initially worked as a casual for the business before being promoted into the position, after advertising for the engagement of a manager, which was advertised over a 4 to 8 week period in 2017.
The applicant stated that if he had only one store he would not need a Retail Manager, however, he has 8 stores within a 250km radius, whereby he lives in Canberra and that it was physically important for the business to be run from here (Wagga Wagga).
The applicant provided evidence that the business opening hours are from 10.00am to 5.00pm (pre-Covid), except on Saturday (8.00am to 5.00pm), Sunday and Thursday (8.00am to 4.00pm).
The applicant stated that the nominee only serves at the counter when there is a need, however, the primary task does not include work on the counter and that during his absence the Shift Supervisor will provide relief.
The applicant provided evidence that the nominee is closely engaged with the community as part of his management role and organised a charity fund raiser with WIN Television, which raised $3,000.
The Tribunal canvassed the duties of a Retail Manager, as prescribed in ANZSCO Code: 142111 and the applicant confirmed in evidence that the nominee undertakes all of the prescribed tasks set out in the descriptor.
Further, the applicant provided evidence that the business made a pre-tax profit of $105,725 from a total asset base of $564,445 in 2019. The gross profit from trading was presented to the Tribunal as $1,005,127 in 2019 and $1,591,209 in 2018.
Evidence from the Nominee – Mr. Patel
The nominee stated that he arrived in Australia in February 2015 and that he commenced working for the franchise in February 2017, where his initial job was as a casual. He stated that he was paid $55,000 per annum with 10 per cent superannuation.
The nominee confirmed to the Tribunal that he scored 6.5 as an overall score in an IELTS English language test on 5 October 2018.
The nominee provided evidence that his duties as a Retail Manager included:
a.Selection of staff and maintenance of employee files and implement discipline policies;
b.Maintenance of stock, especially perishable items;
c.Maintaining financials for the business in accordance with set KPIs and perform the banking;
d.Provide a safe working environment in accordance with OHS standards;
e.Implement promotional events, including Christmas events;
f.Maintain an employee roster;
g.Maintain sales data and ensure pending perishables are pushed on specials;
h.Handle customer issues and maintain records.
The nominee stated that he is always on-call and that he rosters on 3 to 4 days per week and that the Shift team leader covers in his absence. He also sometimes serves on the counter, if busy.
The nominee confirmed in evidence that he completed the following courses of study:
a.Certificate III in Business completed 24 January 2015;
b.Certificate IV in Business awarded 16 February 2016;
c.Diploma of Business awarded 29 June 2016
d.Advanced Diploma of Business awarded 7 December 2016.
The applicant also provided evidence that he completed a Bachelor of Commerce at the Kadi Sana Vishwavidyalaya University in India prior to coming to Australia.
The nominee provided an ATO Tax Group Certificate for 30 June 2017, that identified a gross income of $48,900.
The Representative submitted that the business is not a normal retail outlet and that the Retail Manager has extended responsibilities, which were elaborated in submissions.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The applicant lodged the application to nominate the nominee for the position of Retail Manager – ANZSCO Code: 142111 with the business on 23 February 2017 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).
The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant provided evidence that the nominating business, Neev Pty Ltd was first registered with the ASIC on 16 April 2015; ABN 32 104 969 828 and currently the business has two participating shareholders, one of whom, represented the company at the hearing.
Further, the Tribunal is satisfied that the business, based upon the information presently before the Tribunal is actively operating lawfully and is directly operated by a principal shareholder.
Further, the business has demonstrated an economic capacity to support the employment of the nominee for a period exceeding two years.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal finds that r.5.19(4)(c) is not relevant to the current nomination.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension having already been employed for three years. On a full-time basis.
The applicant provided the Tribunal with evidence that the nominee has a contract of employment that commenced on 6 February 2017 and that the nominee has a contract of not less than 2 years. In this regard, the evidence identified that the nominee has a current salary of $55,000 and the position is designated as Restaurant/Retail Manager on the organisation chart.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal is satisfied that the terms and conditions of employment are no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal about the nominator or a person associated with the nominator.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 6 February 2017 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement.
Further, the applicant attested that the nominee was provided with a Fair Work Information Statement at the time of engagement.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains 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:
a.the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 2016/059 pertaining to Business Visas) the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
b.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 Tribunal is satisfied on the basis of the evidence that the position and business is located in ‘regional Australia’ and that the applicant applied for Regional Certification, which was granted on 28 March 2017 by the Regional Development Australia - Riverina Inc. for the occupation of Retail Manager – ANZSCO Code: 142111 for the nominee Dhaval Mangalbhai Patel on a salary of $52,000 (at the time).
Further, the Tribunal is satisfied, based upon the evidence that there is a genuine need for the position of Retail Manager to work under the direct control of the business owner/director and that the position was advertised locally and could not be filled by an Australian citizen or permanent resident who is living in the same local area with the equivalent skills and competencies.
Additionally, the Tribunal is satisfied that the scale of the business, with gross profit from trading that was presented to the Tribunal as $1,005,127 in 2019 and $1,591,209 in 2018 and a pre-tax profit of $105,725 in 2019, will, in the Tribunal’s view, warrants the engagement of a Retail Manager, particularly given that the Director has responsibilities that cover the operation of eight outlets over an extensive geographic area of a 250km radius from Canberra to Wagga Wagga. In these circumstances, the Tribunal is satisfied, that a Retail Manager is required for the Wagga Wagga franchised business to manage the full scope of the operation, excluding financial and specific franchise responsibilities, which are handled by the Director. As such, the Retail Manager, operates the Red Rooster Wagga Wagga business with duties that are consistent with the ANZSCO descriptor for a Retail Manager, under the direct control of the director.
The Tribunal is satisfied, based upon the evidence of the applicant and the evidence of the nominee, that the position includes all of the tasks outlined in the position descriptor for a Retail Manager – ANZSCO Code: 142111. In this regard, the applicant confirmed to the Tribunal that the nominee performs the following tasks:
a.determining product mix, stock levels and service standards;
b.formulating and implementing purchasing and marketing policies, and setting prices;
c.promoting and advertising the establishment's goods and services;
d.selling goods and services to customers and advising them on product use;
e.maintaining records of stock levels and financial transactions (however the Director does provide assistance with this activity);
f.undertaking budgeting for the establishment (however the Director does require the assistance of the nominee with this activity);
g.controlling selection, training and supervision of staff;
h.ensuring compliance with occupational health and safety regulations.
The Tribunal has considered the comparison of the ANZSCO descriptor for the occupation of Retail Supervisor – ANZSCO Code: 621511 and is satisfied that whilst the position includes some of these tasks, the nominee also carries out the tasks of a Retail Manager – ANZSCO Code: 142111 in the breadth of the role performed by the nominee.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Warren Stooke AM
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 5206

21 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal