NS (Australia) Pty Ltd (Migration)

NS (Australia) Pty Ltd (Migration) [2020] AATA 5223 (26 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  NS (Australia) Pty Ltd
CASE NUMBER:  1733089
HOME AFFAIRS REFERENCE(S):          BCC2016/3918276
MEMBER:W Frost
DATE:26 August 2020
PLACE OF DECISION:  Canberra
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 August 2020 at 2:23pm
CATCHWORDS
MIGRATION– Direct Entry Nomination stream – Retail Manager (General) – Employee is fulfilling the role of a Retail Manager for the Nominator– genuine need for the nominator to employ a paid employee – No less favourable terms and condition 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 22 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 (Regulations).
On 22 November 2016, the applicant applied to the Department of Immigration for approval of the nominated position, ‘Retail Manager (General)’ (Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code 142111). 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 nominated position of ‘Retail Manager (General)’ (ANZSCO Code 142111), is with NS (Australia) Pty Ltd, trading as ‘7-ELEVEN 2296C’ (Nominator) in Wanniassa in the Australian Capital Territory (ACT). The nominated position is to be filled by the nominee, Mr Muhammad Aaqib, a current employee with the Nominator (Employee).
The delegate of the Minister 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 the tasks to be performed in the position corresponded to the tasks of an occupation specified in the relevant instrument, being the tasks of a ‘Retail Manager (General)’ (ANZSCO 142111). Therefore, the delegate found that the business did not meet r.5.19(4)(h)(ii)(D) of the Regulations.
The Nominator appeared before the Tribunal on 17 August 2020, by the videoconferencing facility Microsoft Teams, to give evidence and present arguments. The Tribunal received oral evidence from Ms Na Tan, the sole director of the Nominator and from Mr Aaqib, the Employee of the nominating business. The Nominator was also represented by its registered migration agent, Mr Abdul Hasib Khan.
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 Nominator 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 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) of the Migration Act 1958 (Act). 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 material on the departmental and Tribunal files demonstrates that the application was made on form 1395, or 1395 (Internet) and accompanied by the fee prescribed in r.5.37. The application identified a need for the Nominator to employ a paid employee to work in the position under the Nominator’s direct control. The nominated position was identified as ‘Retail Manager (General)’ with NS (Australia) Pty Ltd (trading as ‘7-ELEVEN 2296C’). The need for the position with the Nominator is discussed further below in these reasons.
The application also contained written certification that the Nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act. 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 Nominator is actively, lawfully and directly operating a business in Australia. On the available evidence, the Tribunal is satisfied that the Nominator is actively and lawfully operating a business in Australia and that it directly operates the business. 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. Based on the information before the Tribunal, it finds that the Nominator is not involved in labour-hire activities and it is satisfied that the nominated position is not a labour-hire position. 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 Employee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Nominator told the Tribunal that the Employee had worked at the business since 2013 and in the position of Store Manager since 2016. In this regard, a contract, titled ‘Co-operation Agreement for Retail Services’, was signed by the Nominator and the Employee on 20 September 2016. The contract set out an agreement that the Nominator had offered, and the Employee had accepted, the position of ‘Store Manager’, being a full-time position for 38 hours per week and ‘available for 2 years as an initial offer and likely to be extended depending on the performance’ of the Employee. The Employee’s total remuneration (including 9.5% superannuation) was listed as $61,990.
The Nominator told the Tribunal that the Employee is still employed in the position of Store Manager and the terms of the 2016 Contract remain in place for the Employee’s employment. That is, there has been no new contract agreed between the Nominator and the Employee. In addition, by a ‘Letter of Confirmation on Continued Employment as Store Manager’ provided to the Tribunal and dated 10 June 2020, the Nominator stated that it had increased the Employee’s total remuneration to approximately $71,000, including superannuation, with effect from July 2018, ‘as per the National Employment Standard’. The Tribunal was told by the Nominator that the Employee’s employment was ‘ongoing’ and was not determined on a month-to-month basis. Additionally, the Employee’s remuneration was said to be above the minimum market rate for a Store Manager because of his and the business’ performance over recent years. For example, the business experienced an increased total trading income of almost $50,000 from the 2018 to 2019 financial years, according to the financial statements for the business for the year ended 30 June 2019. The Employee also told the Tribunal that he wished to remain in his current role with the business and enjoyed working for the Nominator; the Nominator confirmed that the Employee would be employed by the business in the position as Store Manager for at least the next two years.
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.
According to the PayScale website, the current average pay for a Retail Store Manager in Australia is $53,336. The average in the ACT is $51,319, with a range between $43,000 and $61,000.
As noted above, the Employee is paid approximately $71,000 per annum, including superannuation. Additionally, under the terms of his ongoing employment contract with the Nominator, the Employee works 38 hours per week and has four weeks annual leave per year plus two weeks sick leave and parental and carers’ leave ‘as required’. The recent ‘Letter of Confirmation on Continued Employment as Store Manager’ stated that the Employee’s total remuneration was $71,000, with effect from July 2018 ‘as per the National Employment Standard’, noting the Nominator said it paid the Employee above the minimum market rate for a Store Manager because of his and the business’ recent performance.
Based on the material before the Tribunal, it is satisfied that the terms and conditions applicable to the 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. 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 of the Regulations. Based on the evidence before the Tribunal, there is no adverse information known to Immigration 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.
Based on the information before the Tribunal, it is satisfied that the Nominator has a satisfactory record of compliance with workplace relations laws in locations in which it operates a business and employs staff. 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:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, 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 nomination was made on the basis that the position and business is located in regional Australia. The Tribunal finds that the entire territory of the ACT is defined as part of ‘regional Australia’ under the Regulations. The position and the business are located in the ACT and they are therefore located in regional Australia.
The Tribunal accepts the evidence from the Nominator that there is a genuine need for the Nominator to employ the person identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the Nominator’s direct control. The Employee has been employed with the Nominator as Store Manager for four years. The Employee is employed in the nominated position and has been working in that role since 2016. The sole director of the Nominator, Ms Tan, informed the Tribunal that she cannot perform the services required of a Store Manager and the Employee is required to run the business.
Pursuant to r.5.19(4)(h)(ii)(D), the Tribunal must be satisfied that the tasks of the nominated position of Retail or Store Manager at the business effectively align with the tasks for that occupation as outlined in the relevant legislative instrument, the ANZSCO, which in this application is ‘Retail Manager (General)’. This issue was central to the refusal of the application by a delegate of the Minister. The delegate was not satisfied that some of the tasks to be performed by the Employee corresponded to those of an occupation specified in the ANZSCO.
ANZSCO is a skill-based classification produced by the Australian Bureau of Statistics used to classify all occupations and jobs in the Australian and New Zealand labour markets to provide a generic baseline of duties for a particular position based on statistical data. The ANZSCO classifies ‘Retail Managers’ as a ‘Unit Group’ (numbered 1421) and provides the following description, including of the occupation of ‘Retail Manager (General)’:
UNIT GROUP 1421 RETAIL MANAGERS
RETAIL MANAGERS organise and control the operations of establishments which provide retail services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand:
NZQF Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
odetermining product mix, stock levels and service standards
oformulating and implementing purchasing and marketing policies, and setting prices
opromoting and advertising the establishment's goods and services
oselling goods and services to customers and advising them on product use
omaintaining records of stock levels and financial transactions
oundertaking budgeting for the establishment
ocontrolling selection, training and supervision of staff
oensuring compliance with occupational health and safety regulations
Occupations:
142111 Retail Manager (General)
142112 Antique Dealer
142113 Betting Agency Manager
142114 Hair or Beauty Salon Manager
142115 Post Office Manager
142116 Travel Agency Manager
142111 RETAIL MANAGER (GENERAL)
Alternative Titles:
Retail Store Manager
Shop Manager
Organises and controls the operations of a retail trading establishment.
…
Skill Level: 2
…
Before becoming the sole director of the Nominator, Ms Tan, was herself an employee of the Nominator and worked in the position of Store Manager at the business between 2013 and 2016. In May 2015, Ms Tan was successfully sponsored by the Nominator and granted a Regional Employer Nomination (subclass 187) visa by the Department in relation to the same position at the store to which the Employee is being nominated. Ms Tan subsequently purchased the store and, as the now director of the Nominator, in 2016 nominated the Employee for a subclass 187 visa due to his position as Store Manager with the business. Ms Tan told the Tribunal that before 2016 she undertook the same duties as the Employee when she was approved for the nominated position and visa by the Department.
In November 2015, based on the documentary evidence, Ms Tan, reported lower back pain to her general practitioner, which was exacerbated by lifting at the business. This back pain continued until at least March 2016. Ms Tan told the Tribunal that she physically cannot work in the store because she continues to experience this pain and cannot sit for more than a few hours. Additionally, Ms Tan was pregnant from November 2016 and did not work in the store beyond this time, noting also that she gave birth to her child in September 2017. This resulted in further responsibility being passed to the Employee as Store Manager of the business, noting that the was nomination was made in November 2016. Ms Tan said that she had ‘zero involvement’ in the ‘daily business operation’ and that this commenced from September 2016 when the employment contract was signed for the Employee to work as Store Manager. Ms Tan confirmed that she had given control of the day-to-day running of the business and met with the Employee once a month for a ‘brief or general summary of the business’.
The Employee told the Tribunal that he normally works 40 hours a week and that he ‘loves’ his job as Store Manager and wishes to remain in this position. The Employee also stated that his tasks include: determining the product mix in the store, maintaining stock levels, making sales projections, coaching staff, checking their visas, hiring and terminating employees, maintaining service standards and ensuring occupational health and safety is maintained. The Employee said that he always works at the business with another employee unless that employee calls in sick. The Employee said he ‘would love to’ remain in his current position as Store Manager with the Nominator.
The Nominator informed the Department by letter in September 2016 that the Employee started working at the business in a part-time capacity from May 2016 and held a Diploma of Leadership and Management and a Diploma of Accounting. The Employee told the Tribunal that he had attained these qualifications in Australia. The Nominator’s 2016 letter to the Department said that, since he became the Store Manager, the Employee had ensured the store was ‘organised and customers are buying more as they are able to easily locate them’, there were ‘the right stock levels’, the financial records are well maintained, the staff are ‘well managed’ and sales have increased. In this regard, the Nominator said the Employee had ‘greatly contribute[d] to the business and in providing improved services, better quality, financial growth, stability, popularity and good will to the business’.
The Nominator in 2016 provided the Department with a Duty Statement for the position of Store Manager at the business, which said that the main duties were to ‘organize and control the operation of the store and manage the daily affairs of the business’. These duties were said to include reporting to the Managing Director of the Nominator; determining product mix, stock levels, sales plans and service standards; formulating and implementing purchase policies and setting prices in consultation with the Managing Director; promoting goods and services; selecting, training and supervising staff and ensuring compliance with occupational health and safety regulations.
Based on this Duty Statement for the position of Store Manager (or ‘Retail Manager (General)’) at the business, the delegate’s refusal decision from 2017 and other documentation provided by the Nominator, the Tribunal requested oral evidence at the hearing regarding how these tasks aligned with the requisite tasks of a ‘Retail Manager (General)’ set out by the ANZSCO. More specifically, as noted above, the ANZSCO states that ‘Retail Managers organise and control the operations of establishments which provide retail services’ and their tasks relevantly 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; and
·undertaking budgeting for the establishment.

In relation to ‘determining product mix, stock levels and service standards’, the Duty Statement indicates that the Employee is responsible for these particular tasks, however the Tribunal asked both the Nominator and the Employee whether it was rather the franchisor, 7-ELEVEN, that determines what products the business is able to sell, its stock levels and service standards in order to maintain a uniform approach across all stores. The Tribunal referred to the letter from Mr Khan dated 14 June 2020, which stated that the Employee determines grocery orders, estimates sales quantities and can add products not included in the suggested layout of the store determined by the franchisor and asked whether these met the level of the particular tasks set out under the ANZSCO. The Employee responded that the franchisor provides the store layout and ‘core products’ that must be carried by the store. The Employee estimated that ‘core products’ were approximately ten out of one hundred products. All other products were said to be able to be changed or determined by the individual franchisee and the Employee undertakes this task on its behalf as Store Manager; the Employee can source products from either the franchisor or elsewhere as required. The Employee said that he does not now discuss these decisions with the Nominator. The Employee did concede that there was a service standard set out by the franchisor that must be met and reported on regularly by the business. In relation to stock levels, the Employee said that he had a weekly budget of $90,000 for all stock across the store and had to manage that budget in purchasing products.
The Duty Statement lists the Employee as having responsibility to ‘formulate and implement purchase policy and set prices in consultation with Managing Director’. The Tribunal put to the Nominator and the Employee at the hearing that this task did not seem to be solely the Employee’s responsibility in circumstances where he had to consult with the Managing Director. Additionally, the Duty Statement does not state that the Employee is responsible for formulating and implementing marketing policies, being a task listed in the ANZSCO for a Retail Manager. The Tribunal asked the Nominator and the Employee at the hearing whether the purchasing and marketing policies and the setting of prices are done by the franchisor. For instance, whether the franchise paid a marketing or advertising fee to the franchisor to manage the brand nationally. The Employee responded that he does ‘all the pricing’; in the last few years he has not discussed these matters with Ms Tan on behalf of the Nominator. The Employee told the Tribunal that there are set prices for the ‘core products’ that must be carried by a 7-ELEVEN store (being the highest selling products), which amount to around 10% of all products in the store, but otherwise he determines the pricing for products in the store. In relation to marketing policies, the Employee said he sets targets based on sales projections and purchases and he discusses these with employees at the store. Ms Tan confirmed that the Nominator does not pay any marketing or advertising fee to the franchisor, noting that the Nominator’s financial statement for the financial year ending 30 June 2019 listed the payment of approximately $450,000 in ‘fees & charges’ to the franchisor. Ms Tan said this payment included ‘licence fees’ and not any advertising or marketing fee. In relation to ‘Annexure G1’ from Mr Khan’s 14 June 2020 letter to the Tribunal, which was a list of new products with ‘key selling points for customers’ sent by the franchisor, the Employee stated that the franchisor provides ‘marketing tickets’ for certain products, but the franchisor does not do anything related to in-store promotions; the Employee settles in-store promotions and targets for products. The Employee said that he tells the staff members what product to promote and how to promote products. Additionally, for products that are not purchased through the franchisor, the Employee can request ‘marketing tickets’ from the franchisor to promote those products.
The Duty Statement also states that the employee will ‘promote goods and services to customers’. The Tribunal noted to the Nominator and the Employee at the hearing that this appeared to be in relation to in-store purchasing. For example, the letter dated 5 April 2018 from Mr Khan stated that the Employee organises a promotional display unit in the store. The Tribunal asked the Employee how he promotes and advertises products in addition to what the franchisor provides by way of ‘marketing tickets’ for the ‘core products’ that are to be displayed outside of the store. The Employee responded that he made and distributed coffee and Slurpee vouchers to schools, colleges and stadiums or other places that people gathered in order to generate business.
While the Employee’s Duty Statement does not specifically list the task of ‘undertaking budgeting for the establishment’ as one for the Employee, it does refer to maintaining financial transactions, banking and cash management and payroll. Mr Khan’s letter dated 5 April 2018 also states that the Employee ‘prepares projections of sales, operating costs and overhead costs’ on a monthly and quarterly basis and discusses these matters with Ms Tan to finalise the budget for the business. At the hearing, the Tribunal asked how budgeting was performed for the business and the Employee’s role in this process. The Employee responded that it is done on the basis of store sales projections that he formulates by analysing previous performance data and future events in the area or depending upon the time of the year. The Employee then looks at rostering and training according to the business’ needs and likely sales. The Employee also looks at payroll data to finalise the budget for the business. In this regard, the Employee confirmed to the Tribunal that he undertook budgeting for the Nominator. Once he had formulated the budget, he discusses this with Ms Tan on a monthly and quarterly basis, they analyse the expense items from the financial statements and discuss the store’s performance and how the budget will be met and sales will be increased through promotions. The Tribunal was further told that the week-to-week budget is finalised and implemented by the Employee without Ms Tan’s input. Ms Tan confirmed that the Employee ran the business on behalf of the Nominator. In this regard, on numerous occasions during the hearing, Ms Tan referred to having ‘passed’ the business to the Employee.
In addition to the above tasks, since 2016, the Employee has been signing employment contracts with employees of the business on behalf of the Nominator and completing new employee forms. The Employee was said to have responsibility for ‘hiring and firing’ employees of the business and training new employees of the business. The evidence demonstrates that since October 2016 the Employee has communicated with representatives of the franchisor the termination of employees’ employment at the business for the purpose of removing them from an employment database held by the franchisor and also to change employees’ hours of work. The documentary evidence provided by the Nominator shows the Employee in regular communication and meetings with the district manager of the franchisor regarding the business’ operations, trading and finances. The Employee told the Tribunal at the hearing that he meets fortnightly with a representative of the franchisor regarding the operational and financial performance of the business. The Employee on behalf of the Nominator also has a six-monthly review with the franchisor to review the store’s operations. The evidence also shows that the Employee approves invoices on behalf of the business. There was also evidence of communications from the Employee to the staff members of the business that demonstrate he was providing direction to them regarding issues arising in the store. The Employee told the Tribunal that he informs the Nominator on a monthly, quarterly and annual basis about the financial performance of the business and they meet to set targets for the store. The Tribunal was provided after the hearing with a certificate awarded in August 2013 to the Employee for completion of the required ‘7-ELEVEN SEFT Training Program’ that was said to be the ‘Seven Eleven Franchisee Training’ program ‘for training of Store Manager’ that was required in order for the franchisor to recognise him as the Store Manager with the associated management responsibilities and duties. While this course was completed in 2013 and the Employee did not commence as Store Manager until 2016, the Tribunal accepts that this accreditation was required by the franchisor for him to work in that position at the business. Ms Tan also told the Tribunal at the hearing that she had informed the district and regional managers about the Employee having responsibility for the business as Store Manager.
On 13 June 2020, Ms Tan made a Statutory Declaration in which she relevantly stated that:
I am currently working as a Public Servant with NSW Government and have no time to look after my business. I solely depend on my Store Manager Mr. Muhammad AAQIB who has complete control and is in-charge of the business. I very rarely visit the store.
Ms Tan provided a further Statutory Declaration after the hearing that was made on 18 August 2020, which relevantly stated that:
As I was very sick and was suffering from lower back pain from mid-2015 that gradually got worse and I could not sit on the chair for more than 2 hours and was advised by the Doctor to take bed rest. Also from 13 Jun 2016, I was persuing my studies from MBA from University of Canberra, thus had no time to look after my Store.
With this in view I discussed my issues with the then District Manager of 7-ELEVEN Mr Hakan ISIL during early Sep 2016 that I wish to make Mr. Muhammad AAQIB the Store Manager of 7-ELEVEN 2296C with all responsibilities. He agreed and with his concent I gave Mr. Muhammad AAQIB the full responsibility of Store Manager, that he is efficiently performing till date. [errors in original]
At the conclusion of the hearing, the registered migration agent for the Nominator, Mr Khan, told the Tribunal that Ms Tan had given ‘total control’ of the business to the Employee, because she had a child in 2017 and had a NSW public service job. Mr Khan also said that the position held by Ms Tan that led to her permanent visa being granted in 2015 was ‘the same thing’ as the circumstances of the Employee.
The Employee told the Tribunal that since the nomination was made to the Department in 2016 he had married and he and his wife had a one year old daughter.
Based on the evidence before the Tribunal, it is satisfied that the Employee is fulfilling the role of a Retail Manager for the Nominator. The Employee organises and controls the operations of the Nominator; the sole director, Ms Tan has effectively assigned the running of the business to the Employee and she is only consulted by him on a monthly basis and would only be involved with the franchisor if there was a major incident at the premises, such as a fire or robbery. Otherwise, the Employee is running the business as the Store Manager for the Nominator. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(D) is met.
Finally, the relevant Regional Certifying Body, being the ACT Economic Development Directorate, located in the same Territory as the position, advised the Minister in November 2016 about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) of the Regulations. There is nothing to indicate that the advice is no longer valid. For completeness, the Tribunal is satisfied that r.5.19(4)(h)(ii)(C) is met. The Nominator told the Tribunal that the business cannot fill the position with an Australian citizen or permanent resident living in the same local area and there is a shortage of qualified people who are willing to work in the position and for the hours required with the associated responsibility of being the store manager of a business that operates every day of the year.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the Nominator 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.
W Frost
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 5223

26 August 2020

Key Legal Topics

Areas of Law

Immigration

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