Nuv Avenel Pty Ltd (Migration)

Nuv Avenel Pty Ltd (Migration) [2019] AATA 6279 (10 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Nuv Avenel Pty Ltd
CASE NUMBER:  1801078
DIBP REFERENCE(S):  BCC2016/2008542
MEMBER:Mark Bishop
DATE:10 October 2019
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 10 October 2019 at 2:31pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – tasks to be performed in position – position description and actual duties compared with ANZSCO specification – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
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 Immigration on 28 December 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 10 June 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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) of the Regulations because position description in the application did not match occupation specified in the relevant instrument.
The Tribunal resolved the review application on the papers.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
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.
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 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 following material:
·an online form, RA certified it had not engaged in conduct that contrives subsection 245AR(1) of the Migration Act 1958 and fee paid;
·material that Identified a need for the nominator to employ an identified person as a paid employee to work in the position under the nominators 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)
The nominator appears to be actively and lawfully operating a business according to ASIC checks and financial records provided for 17/18, see:
·Registration
·ASIC information (Company Statement and Office Holders)
·ABN Lookup and Historical Extract
·2017 - 2018 Tax Returns
·2017, 2018 and (draft) 2019 Financial Statements
·BAS June 2016 until June 2019
Accordingly the requirement in r.5.19(4)(b) is met.
5.19(4)(c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses
5.19(4)(c) applies to a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator. There is no evidence before the Tribunal that the business activities of the applicant include labour hire
Accordingly the requirement in r.5.19(4)(c) is met.
5.19(4)(d) future employment of nominee - will be employed for at least two years with a no exclusion of extension
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. The applicant provided information that showed the nominee will be employed for at least two years with no exclusion of extension.
The nominator provided copies of the following documents: Letter of Offer, Employment Contract, Position Description and relevant supporting documentation, Signed Employment Contract and Employer Statement attesting to the fact the nominated position is a genuine position.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition 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 applicant provided the following information:
The nominee is one of 19 employed by RA.
The application declares terms and conditions will be equivalent to Australian employees.
The applicant submitted an employment contract that showed a salary of $56,000 plus superannuation for the nominated position.
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.
A google search conducted on 10 October 20192 showed no obvious adverse information results for Nuv Avenel Pty Ltd, Nuvkar Roadhouse Pty Ltd, Nuv Hervey Pty Ltd or Qfix Cafes or Mohammed Abdul Waheed.
There is no adverse information before the Tribunal.
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.
There was no information before the Tribunal that showed past breaches of workplace relations laws. Searches of the FWO website on 10 October 2019 did not reveal any instances of non-compliance relating to Nuv Avenel Pty Ltd, Nuvkar Roadhouse Pty Ltd, Nuv Hervey Pty Ltd or Qfix Cafes.
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)(ii)
(A) Position is located in regional Australia
Nuv Avenel Pty Ltd t/a Avenel Roadhouse has been operating since March 2015 as a restaurant/retail shop at 54 Jones St Avenel. The position is located at Avenel approximately 105 kilometres north of Melbourne. The postcode is 3664. The relevant instrument is IMMI 16/045 which provides that postcode 3664 is located in a regional area
(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
The RA certified genuine need in their application to the Department (DF). The nominee has been in employment in the business for more than 4 years. The applicant provided a copy of his current employment contract.
(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 applicant provided signed submission dated 4 September 2019 stating the nominee has been employed in the nominated position on a full time basis since 2016. The letter states that the applicant had multiple business interests in Melbourne and regional Victoria and looked after his son who attended a school in Glen Waverley Vic. The applicant advised he is unable to perform the day to day management activities because of family commitments and distance of the business from his home. The applicant stated he could not find a suitable local person for the position of Retail Manager so he decided to sponsor the nominee for the position.
(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 application was on 10 June 2016 so the relevant instrument is 15/083. The applicant applied for Retail Manager (General) 142111 (TF 9) which is a listed occupation under Schedule A of IMMI 15/083.
The tasks of a Retail Manager (General) 142111, per ANZSCO are as listed below:
·determining product mix, stock levels and service standards
·formulating and implementing purchasing and marketing policies, and setting prices
·promoting and advertising the establishment's goods and services
·selling goods and services to customers and advising them on product use
·maintaining records of stock levels and financial transactions
·undertaking budgeting for the establishment
·controlling selection, training and supervision of staff
·ensuring compliance with occupational health and safety regulations
One of the occupations listed under the relevant Ministerial Direction is Retail Manager (General) ANZSCO Code: 142111. It is a Skill Level 2 Occupation, for which an Associate Degree, Advanced Diploma, Diploma or three years relevant experience is generally required. The role of the position is described on the ANSCO website as: “Organises and controls the operations of a retail trading establishment.”
The nominee has more than three years’ experience in the relevant position.
The applicant provided a position description of the relevant position that outlined the following duties:
·supporting business growth and development via implementing promotion and advertising plan to market the company' service and product for the Roadhouse Restaurant;
·Motivate, mentor, and develop the team;
·Determining product range, stock level, customer service standards and implementing cost control to maximise profitability for the business;
·Supporting other subordinates to sell goods and service to customers ;
·Organising bookings for functions and special events;
·Maintaining records of stock levels and daily financial transactions;
·Recruiting, training and supervision of staff to ensure "excellent customer objective is achieved;
·Overseeing all necessary activities to ensure compliance with occupational health and safety regulations;
·Day to day banking and bank reconciliation;
·Analysing operating costs, income and expenses of the business;
·Preparing the budgets within project parameter to deliver targets.
The delegate’s decision addressed seriatim each of the tasks found in the position description of a Retail Manger as outlined in paragraph 36 above.
The delegate made a set of findings as follows:
·Some of the tasks listed in the position description aligned with ANZSCO descriptions of a Retail Manager. Little evidence was provided to demonstrate how these talks applied within a Roadhouse setting. Accordingly the delegate determined to assess the ANZSCO tasks for the nominated position of Retail Manager;
·The business was a 24 hour operation. The business employed a chef and accordingly the chef was responsible for planning menus, estimating food and labour costs and ordering food supplies;
·The delegate assumed that existing relationships with suppliers meant that food and supplies ordering was limited to a re-ordering function;
·The delegate questioned the legitimacy of a statement from the applicant addressing customer service standards and the implementation of a training regime for staff devised by the nominee;
·The delegate gave little weight to the issue of “formulating and implementing purchasing and marketing policies and setting prices” as there was no evidence there was an active or current marketing plan in process;
·The applicant failed to provide evidence relating to the promotion and advertising of the establishment’s goods and services. Accordingly the delegate was not satisfied that any promotional activities undertaken by the manager would be performed at ANZSCO Skill Level 2;
·The applicant provided only limited information as to how tasks relating to how the financial management of the business, day to day banking, maintenance of daily transaction costs, cost control and budget preparation were performed by the nominee. Financial Statements and BAS were prepared by an outside firm. Whilst the Managing Director had family and other business commitments this did not negate the financial commitment and investment held as sole director of the company. The Retail Manger carried out some financial management responsibilities but they did not correlate to an ANZSCO Skill Level 2 task of a Retail Manager;
·“Selling goods and services to customers and advising them on product use” was not address in the position description provided by the applicant;
·The nominated position is responsible for day to day financial transactions of the store, such as reconciling merchant facilities, managing cash drawers and banking. However these tasks were not consistent with ANZSCO Skill Level 2 tasks;
·The delegate accepted the nominee was responsible for interviewing, hiring, training and evaluating staff, a Retail Supervisor duty.
In response to the findings of the delegate as outlined above in paragraph 41 the applicant provided a comprehensive statement that addressed in detail all of the tasks associated with the responsibilities of an ANZSCO 142111 Retail Manager and carried out by the nominee currently occupying the position in the roadhouse at Avenel. The applicant advised the nominee carried out the following tasks:
·Identifying stock always need and making sure we have sufficient supply
·Negotiating deals with suppliers, negotiating discounts for quick settlement negotiate for smaller and more frequent deliveries from suppliers to smooth out cash flow.
·Ordering stock in small quantities more frequently and arranging better delivery schedules with suppliers. It allows us to keep stock at minimum required level, save money and improve liquidity without reduction in sales.
·Calculating the stock turnover rate by determining cost of goods sold and the cost of stock in hand.
·Involving local and small businesses as a part of our supply
·Using social media tools such as Google and Facebook to directly engage with customers such as free coffee on Facebook like etc.
·Keeping track of both positive and negative feedback from customers.
·Offers are displayed in restaurant area to attract restaurant customers
·Ensuring that employees are fully advised of any special pricing for the promotional item such as special menu for truck club member and prices, regular coffee buyer deals, breakfast deals, promoting Parma night, pizza evening etc;
·Staff is advised to greet customers with smiling face
·They are trained to talk to customers and seek their feedback about products and services of the venue and available elsewhere
·Inform customers about special offers which are displayed in restaurant area to attract restaurant customers
·Ordering goods before reaching at the minimum level. To identify items reaching close to expiry dates and to remove obsolete/expired items from shelves.
·Discuss financial transactions if there is any discrepancy with staff after comparing transactions with payment records, inventory, sales invoices and the bank transactions.
·Tracking the errors and arrears and to discuss with director, if an issue could not be resolved.
·Controlling and maintaining record of employees’ hours for payroll process
·Keeping record of sales invoices and expenses payment receipts and provide it to accountants every month for their statutory reporting and record keeping
·Preparing the budgets within project parameters to deliver targets. Budget for turnover and expenses are prepared on annual basis.
·Analysis of actual and budgeted figures on monthly basis and to identify reasons for variances and to take necessary measures with the approval of director
·Arranging the purchasing and pricing of goods according to budget.
·Time framing the budget by forecasting all fixed expenses like salary, rent, insurance and any other known costs.
·Provide training to new employees that how to interact with customers and how to deal with them in different situations
·Recruiting highly suitable employees by screening the candidate’s resumes and conducting interviews.
·To resolve performance problems of employees when they are not performing the tasks as it is expected.
·Keeping record on Google spreadsheet for example payroll, payments, sales
·Analysing operating costs, income and expenses of the business;
·Managing all variable expenses materials and staff wages utilities, direct costs of materials and staff wages.
The applicant has provided a comprehensive document that outlines the responsibilities of an ANZSCO 141211 Retail Manager, the responsibilities as per the position description of the position and explanation of the job tasks associated with the position and carried out by the nominee over the last four years.
The applicant has provided considerable detail as to the tasks carried out by the current occupant of the position of Retail Manager as located at the Avenel Roadhouse. The owner of the company lives in Melbourne. The nominee has responsibility for the direction, control, growth, expansion and continuing profitability of the roadhouse. The nominee has responsibility for the creation, implementation and review of all facets relating to the management of the roadhouse. Critically this involves finance, budgets, staff hiring training supervision and retention, advertising, cost management inclusive of cost issue identification and resolution, cost minimisation, ongoing cost analysis, record keeping, pricing, budget analysis, consultation with the director as appropriate It operates 24 hours per day. As is appropriate capital is provided by the applicant. The applicant has determined that certain accounting and auditing functions are carried out at arm’s length from the day to day management of the enterprise. This is sound business practice.

The applicant (nominator) advised the Tribunal he rarely attends the enterprise. He consults with the nominee on an “on needs basis” or at the discretion of the nominee. This is entirely appropriate and ensures the Retail Manger concentrates on his tasks and the functions of line staff. A non-owner of an enterprise but charged with the tasks outlined above has a responsible and important job. It is not merely the implementation of already defined policies. It is not merely the copying of tasks already assigned. It is not merely re-ordering of stock. It is not merely the placement of staff. It is not merely the implementation of elsewhere determined budgets.
The tasks of a Retail supervisor include:
· ensuring that customers receive prompt service and quality goods and services
·responding to customers' inquiries and complaints about goods and services
·planning and preparing work schedules and assigning staff to specific duties
·interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances
·instructing staff on how to handle difficult and complicated sales procedures
·examining returned goods and deciding on appropriate action
·taking inventory of goods for sale and ordering new stock
·ensuring that goods and services are correctly priced and displayed
·ensuring safety and security procedures are enforced
The Tribunal accepts that some of the tasks outlined above in paragraph 42 can and do fit within the classification of Retail Supervisor as outlined above in paragraph 46.
The critical distinction appears to be tasks related to budgeting, pricing, ordering to store needs and market supply with a focus on cost control, budget analysis, cost and pricing analysis, supplier liaison, event promotion and management of variable costs. There is one continuing issue in all these job tasks. It goes to the pricing and costs of the company. This in turn is directly related to growth and profitability of the enterprise. These are the responsibilities of a Retail Manager. They ae not the responsibilities of a Retail Supervisor.
(E) The business is operated by the nominator and is located at that place
The applicant provided material to the Tribunal that shows the tasks will be performed in Australia and these tasks correspond to the tasks of an occupation specified in the relevant instrument. The nominator meets the training requirements specified in the relevant instrument.
Accordingly the requirements of r.5.19(4)(h) are met.
CONCLUDING PARAGRAPHS
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.
Mark Bishop
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).

[2019] AATA 6279

10 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies