OM MAHALAXMII WA PTY LTD (Migration)

OM MAHALAXMII WA PTY LTD (Migration) [2020] AATA 5217 (26 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  OM MAHALAXMII WA PTY LTD
CASE NUMBER:  1806892
HOME AFFAIRS REFERENCE(S):          BCC2016/1780523
MEMBER:Bridget Cullen
DATE:26 August 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 26 August 2020 at 4:15pm
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – tasks of the nominated position are not those of an ANZSCO Skill Level 2 Retail Manager – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 359, 360, 363
Migration Regulations 1994, r 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
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 27 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).
On 19 May 2016, the applicant, Om Mahalaxmii WA Pty Ltd trading as IGA Dawesville, lodged a Regional Employer Nomination (Permanent) (Class RN) nomination under the direct entry stream for the position of Retail Manager (ANZSCO 142111). The nomination was lodged in favour of Amandeep Kaur.
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) of the Regulations because the tasks to be performed by the nominee in the position did not correspond to the tasks of an occupation specified in the relevant instrument, thereby not meeting r.5.19(4)(h)(ii)(D).
On 25 November 2019, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide information in support of the applicants claims to meet all the criterion required for a Direct Entry nomination (r.5.19(4)) in writing.
The invitation was sent to the last address provided in connection with the review and advised that, if the information not provided in writing by 9 December 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal, on 10 December 2019, received a request for an extension of time, from the applicant’s representative, to provide the information until 16 December 2019 as they only returned to Australia on 9 December 2019. As the request was not made until after 9 December 2019, the Tribunal was unable to grant the extension. Nonetheless, the applicant, through their representative, provided documents on 21 January 2020. The Tribunal has considered these documents in making its decision.
As the review applicant did not provided the comments within the prescribed period and no extension was granted, s.359C applies and pursuant to s.360(3) the review applicant was not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
The applicant was represented in relation to the review by its registered migration agent, Ms Christine Moh-Bridgland (MARN 0429283) of Australian Visa Choices.
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.
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 (see legislative instrument IMMI 18/043), 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 provided the Tribunal with a copy of the delegate’s decision record, setting out the reasons that the delegate considered that the applicant had not demonstrated that the tasks to be performed in the position corresponded to the tasks of an occupation specified by the Minister in an instrument in writing for r.5.19(4)(h)(ii)(D).
At the time of the delegate’s decision, the following information was available to the Department, as outlined in the decision record:
●     Letter dated 15 December 2015 from Sonali Bansal, Human Resource Manager, to the Regional Certifying Body – Skilled Migration WA, regarding labour market testing.
●    Letter dated 20 January 2016 from the registered migration agent (RMA) to the
Regional Certifying Body – Skilled Migration WA.
●     Dawesville Business Plan.
●     Contract of employment dated 15 December 2015 for Store Manager at IGA Dawesville.
●     Position description – Store manager.
●     Organisation chart for Bansal Group as at 1/9/2016.
●     Organisation chart for IGA Dawesville.
●     Seek job advertisement.
●     Response dated 13 January 2018 to an invitation to comment on adverse information from Sonali Bansal, Human Resource Manager.
●    Financial statements.
●     Bansal Policy Document.
Although the Tribunal, in conducting merits review, reviews and considers all of the information from a fresh perspective, where an applicant has provided the Tribunal with limited information, the decision record affords a useful starting point in setting out the relevant information. The applicant has not disputed the factual findings relating to r.5.19(4)(h) made by the delegate.
Here, the applicant has not provided the Tribunal with any real insight into its argument that it meets r.5.19(4)(h). The only additional information before the Tribunal consists of the following:
·Cellarbrations trading hours;
·IGA Dawesville trading hours;
·Documents relating to a related sponsorship bar; and
·Submissions, which focus on whether there is adverse information before the Tribunal but do not illuminate the applicant’s argument that it meets r.5.19(4)(h).
In the Submissions filed on the applicant’s behalf, the only submission made about r.5.19(4)(h)(ii) is as follows:
Regulation 5.19(h)(ii)
(A) The position is located at Postcode 6211 which is located in regional Australia.
(B) There is a genuine business need to employ another Store Manager as the business has 2 stores operating at the same premise – IGA Store and Celebration Liquor Store.
(C) The company has undertaken labour market testing and could not find a suitable candidate from the local community to undertake the role. Please refer to the LMT report for further details.
(D) The tasks of the Store Manager correspond to the ANZSCO 142111 – Retail Store Manager)
(E) And (F) The RCB has certified that the store is located in the regional area and there is a business need to employ a full-time store manager.
Although the applicant asserts it meets r.5.19(h)(ii)(D), it does not explain how, offer any new relevant evidence, or address any concerns arising out of the delegate’s findings and conclusions.
The decision record sets out the following information relevant to the Tribunal’s considerations:
The organisation chart for IGA Dawesville lists two store managers (Andrew Jones and the nominee, Amandeep Kaur) sitting under the director. Twenty-six staff sit under the store managers. The operating hours of the store are listed as 5 am – 10 pm, 7 days per week.
The business plans states as follows in regard to having two store managers:
·To ensure the success of our IGA Dawesville Store, we require 2 competent Store Managers
·to manage the supermarket and the liquor store for 365 days a year by leading the team:
·To deliver our Service Commitments
·To implement our marketing strategy to drive sales
·To train the team
·To achieve at least 25% gross profit margin for the store
The contract of employment dated 15 December 2015 lists the nominated position as Store Manager (ANZSCO 142111) at IGA Dawesville. It states that the store manager reports directly to the Director and states that the duties and responsibilities are detailed in the job description.
The position description states as follows:
The Store Manager is responsible for the overall performance and operations of the store, ensuring that maximum sales, profit and customer satisfaction are achieved through effective merchandising, pricing and inventory control.
Duties
● Recruiting, training, supervising and appraising staff
● Managing budgets to achieve 25% of Gross Profit
● Maintaining statistical and financial records
● Promoting and marketing the business
● Dealing with customer queries and complaints
● Overseeing pricing and stock control
● Maximising profitability and meeting sales targets
● Ensuring compliance with health and safety legislation
● Implementing company policy and ensure staff adhered to the rules
● May update or make amendments to company policy according to the retailing
regulations in the suburb or state the Store is located
● Prepare payroll report for the Head Office to pay employees
Employment Experience
● Minimum 2 – 3 years of retail and merchandising experience in supermarket retailing
● Able to manage and lead large teams effectively
● Demonstrate passion for customer service and delivering star service at all times
● Able to communicate with suppliers, customers and staff to get results
● Ability to recruit, train, develops staff and manage performance
● Drive sales & encourage your staff to deliver profitable results
● Communicate with Head Office Merchandise teams on stock levels, product, best
sellers etc.
● Assist Department Managers when & if required
● Provide regular reporting back to the Head Office in Queensland on KPI's
Qualifications
● Minimum diploma qualifications in business or management
The job advertisement lists the following about the role:
We are currently looking for highly motivated, passionate retailers to join the business in the leadership role of Store and Evening Store Manager. You will be responsible for the overall performance and operations of the store, ensuring that maximum sales, profit and customer satisfaction are achieved through effective merchandising, pricing and inventory control.
The job advertisement lists the following skills and experience:
● Have retail and merchandising experience in big box retailing
● Able to manage and lead large teams effectively
● Past experience in Supermarket retailing, minimum three years’ experience
● Demonstrate passion for customer service and delivering star service at all times
● Able to communicate with suppliers, customers and staff to get results
● Ability to recruit, train, develops staff and manage performance
● Drive sales & encourage your staff to deliver profitable results
● Communicate with Head Office Merchandise teams on stock levels, product, best
sellers etc.
● Assist Department Managers when & if required
● Provide regular reporting back to the Retail Operations Manager on KPI's
In considering whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing, the Tribunal has considered the ANZSCO dictionary definition of Retail Manager (ANZSCO 142111), which the Tribunal notes is a “is a Skill Level 2” occupation listed on the instrument. The ANZSCO definition provides:
RETAIL MANAGERS organise and control the operations of establishment which provide
retail services.
Tasks include:
● Determining product mix, stock levels and service standards
● Formulating and implementing purchasing and marketing policies, and setting prices
● Promoting and advertising the establishment's goods and services
● Selling goods and services to customers and advising them on product use
● Maintaining records of stock levels and financial transactions
● Undertaking budgeting for the establishment
● Controlling selection, training and supervision of staff
● Ensuring compliance with occupational health and safety regulations
The Tribunal has considered the information that the applicant provided to the Department, as well as the information before the Tribunal (which is not particularly relevant to the Tribunal’s consideration of whether r. 5.19 (4)(h)(ii)(D) is met).
The Tribunal has also considered whether that occupation has a skill level commensurate with an ANZSCO occupation at Skill Level 1, 2 or 3, and whether that occupation is listed on the instrument. Ultimately, the Tribunal has decided that the predominant tasks of the position are not those of an ANZSCO Skill Level 2 Retail Manager. The Tribunal finds that the predominant tasks of the position are more closely aligned with those of an ANZSCO Skill Level 4 Retail Supervisor position, and not those of a Skill Level 2 Retail Manager position.
ANZSCO indicates that Retail Managers “organise and control the operations of establishments which provide retail services,” and that Retail Supervisors “supervise and coordinate the activities of retail sales workers”.
In both the applicant’s position description and job advertisement, provided to the Department, it states that the Store Manager is responsible for:
the overall performance and operations of the store, ensuring that maximum sales, profit and customer satisfaction are achieved through effective merchandising, pricing and inventory control.
The delegate flagged that the applicant’s business plan focused on the retail experience and skills of the applicant’s Director in ensuring the success of the applicant’s business, rather than on the Store Manager. The delegate pointed to the following information, which is not in dispute, as it has been extracted directly from the Business Plan as provided to the Department:
Under Business Overview - “Director has extensive retail and business experience;” and “utilising owner’s expertise in retail and marketing to drive sales in the most cost efficient, effective and innovative manner”.
Under Market Strategy – Driving Sales, the business plan states that the marketing strategy will focus on leveraging the following assets to drive sales:
- Location;
- Director’s retail expertise – utilising innovative marketing strategies;
- Golden Caskets’ ISI Retail Territory Manager – to assist with Instant Scratch-Its and Lotto;
- promotions and marketing opportunities within store and Local Area Marketing;
- IGA’s Brand and supply chain efficiency; and
- Utilising IGA’s Marketing Department.
Under the heading Management and Ownership, the business plan sets out the Director, Guarav Bansal’s credentials:
·Over 6 years’ experience in working, owning and managing small to large size enterprises;
·Sets the strategic and operational direction; and
·Relationship management with stakeholders, suppliers and IGA.
Although the Director’s expertise is referenced at several different junctures in the Business Plan, noticeably absent from the Business Plan is any mention of the Store Manager/Retail Manager Role. The Tribunal finds that it is the applicant’s Director who was to be in charge of the strategic and operational direction of the applicant’s business, and that the Director (and not the Store Manager/Retail Manager) bore overall responsibility for store operations and performance. The Tribunal considers this lack of higher-level responsibility of the Store Manager/Retail Manager to be indicative that the tasks of the position are more aligned with those of a Skill Level 4 Retail Supervisor.
The Tribunal has considered the specific tasks of the nominated position, as set out by the applicant, in the context of ANZSCO descriptions for Retail Manager (ANZSCO 142111), and retail supervisory positions. Although both roles include responsibility for staff management, stock, product quality control, customer service and regulatory requirements, there is a difference between them in relation to higher-level decision-making.
The Retail Manager is responsible for aspects of the business such as budgeting, marketing, pricing and product mix:
- 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.
Determining product mix, stock levels and service standards
The delegate noted, and the Tribunal agrees, that while the applicant’s position description indicates that the nominated position will have responsibility for stock control, and communication with head office merchandise teams on stock levels, product, and best sellers, there is no indication that the nominated position has the higher-level responsibility for determining product mix and stock levels.
Further, although the “Bansal Policy Document” provided to the Department by the applicant contains information about service standards, there is no indication that the Store Manager/Retail Manager has any role to play in determining these standards.
Formulating and implementing purchasing and marketing policies and setting prices
The Tribunal accepts that the nominated position has a role in the implementation of marketing policies. Although there is indication in the position description that the nominated role includes communication with suppliers, there is no information before the Tribunal indicating that the nominated position has responsibility for the higher-order formulation of purchasing and marketing policies.
The Tribunal’s finding that formulation of policy is not part of the nominated position makes sense in a context where the information also indicates that the Director’s expertise, along with that of the IGA Marketing Department, will be utilised.
Although the position description includes the task of “overseeing pricing,” there is no information before the Tribunal indicating that this includes the actual setting of pricing. Further, there is no information explaining whether, given the nature of the applicant’s business, and its relationship with “Metcash” (which owns the IGA brand) it actually has a level of control in relation to price setting.
Promoting and advertising the establishment's goods and services

The applicant’s 20 January 2016 letter to the regional certifying body states that each IGA Store is required to participate in any joint promotions organised by Metcash, however each store can also run its own promotions for different products by printing its own brochures for distribution within its designated geographic zone of operation. The Business Plan paints a picture consistent with this letter. The Tribunal finds that the applicant will utilise promotion and advertising organised by Metcash, complemented by local promotional activity.
The Tribunal acknowledges that the position description lists the duty, “Promoting and marketing the business”. However, there is no evidence before the Tribunal indicating that Store Managers/Retail Managers actually perform this role. However, as there is some information before the Tribunal indicating that there is scope for local IGA stores to advertise, the Tribunal is willing to accept that there may be a component of local advertising that is performed by the nominated position.
However, the Tribunal does not consider that this would be significant, given the more central role that Metcash has in organising promotions and advertising.
Undertaking budgeting for the establishment
The applicant’s 20 January 2016 letter to the regional certifying body states that the Store Manager is responsible for managing budgets to achieve a gross profit of 25%. This is consistent with the position description, and Business Plan. However, as noted by the delegate, the job advertisement contains no mention of undertaking budgeting for the store, and does not call for applicants to have budgetary skills.
The Tribunal considers that, if budgetary skills were actually sought and required, that the job advertisement listed by the applicant would have reflected this, to ensure candidates with the requisite skill levels required to perform the job applied. Given this inconsistency between what the tasks are stated to be, and what was advertised, the Tribunal finds that the applicant has not demonstrated that budgeting for the establishment will be undertaken by the nominated position.
Other considerations
The Tribunal has considered the other ANZSCO tasks of the Retail Manager occupation.
Selling goods and services to customers and advising them on product use
There is no evidence before the Tribunal indicating that the nominated position has responsibility for selling goods and services to customers and advising them on product use.
Maintaining records of stock levels and financial transactions
The Tribunal accepts that the nominated position does have responsibility for maintaining records of stock levels and financial transactions.
Controlling selection, training and supervision of staff
The Tribunal accepts that the nominated position does have responsibility for controlling selection, training and supervision of staff.
Ensuring compliance with occupational health and safety regulations
The Tribunal accepts that the nominated position does have responsibility for ensuring compliance with occupational health and safety regulations, given that this is a requirement imposed on all staff.
Conclusions
Balancing and weighing all of the information before it, the Tribunal finds that the applicant has placed significant focus and emphasis on the experience, skills and relationships of its Director. The Tribunal finds that the Director, rather than the Store Manager has primary responsibility for the organisation and control of business operations.
Consequentially, the Tribunal finds that the predominant tasks of the nominated position are not those of an ANZSCO Skill Level 2 Retail Manager. Rather, the Tribunal finds that the predominant tasks are more closely aligned with those of an ANZSCO Skill Level 4 Retail Supervisory position.
Accordingly, the applicant does not meet r.5.19(4)(h)(ii)(D) and therefore does not meet r.5.19(4)(h)(ii). The applicant also does not meet r.5.19(4)(h)(i)(A) as the nominated tasks do not correspond to the tasks of an occupation specified by the Minister in an instrument in writing for that subparagraph. Accordingly, the applicant does not meet r.5.19(4)(h)(i).
As neither r.5.19(4)(h)(i) nor (ii) is met, the applicant does not meet r.5.19(4)(h).
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 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.
Bridget Cullen
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 5217

26 August 2020

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