Pakridge Pty Ltd (Migration)

[2023] AATA 2867

Pakridge Pty Ltd (Migration) [2023] AATA 2867 (28 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Pakridge Pty Ltd

REPRESENTATIVE:  Ms Suzanne Lee Weel

CASE NUMBER:  1925724

HOME AFFAIRS REFERENCE(S):          BCC2018/948845

MEMBER:Alison Mercer

DATE:28 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 28 August 2023 at 5:17pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – retail manager of petrol station and convenience store – duties of position – franchise where higher-level decisions made by head office or directors – certification from regional certifying body – franchise agreement provides branding and fuel supply, with all other operations independent – director’s active role among other business interests and reliance on nominee’s day-to-day responsibility – nominee’s work in position and at related site – rebuilding business after COVID and floods – attempts to fill positions locally – certification from regional certifying body made before COVID and floods, and not determinative – comparison of position description and ANZSCO listing – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 359

Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 August 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Pakridge Pty Ltd (trading as BP Penoil, Lismore, NSW), applied for approval of its nominated position of Retail Manager (General) on 27 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations, which required that the duties of the nominated position correspond with those of an occupation listed in the relevant written instrument. The delegate was not satisfied that the position nominated by the applicant would carry out the full range of duties for a Retail Manager (General) as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) as the applicant’s business was part of a franchise operation, where higher level decision-making would be performed by the head office or the company’s directors. The delegate further found that the applicant had not obtained the required certification from the relevant Regional Certifying Body (RCB) and therefore did not satisfy r.5.19(4)(h)(ii)(F). The delegate found that the applicant did not satisfy the criteria for approval of its nomination in the Direct Entry stream.

5. The Tribunal received a review application on 13 September 2019. It was lodged by a director of the company, Mr Shazad Rana, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Rana appointed a registered migration agent, Ms Suzanne Weel, as the applicant’s representative and authorised recipient for correspondence.

6. On 19 October 2022, the Tribunal wrote to Mr Rana via the agent to invite him, pursuant to s.359(2), to provide updated and current information demonstrating that the applicant met all of the relevant criteria in r.5.19(4) (not only the criterion that the delegate found was not met). They were requested to provide this information by 2 November 2022.

7. On 2 and 3 November 2022, the Tribunal received the following information from the applicant and its agent:

   ·ASIC current and historical extract for the applicant;

   ·financial statements and company tax return for the applicant for 2019/2020;

   ·draft profit and loss statement for the applicant for 2020/2021;

   ·nominee’s ATO notice of assessment for 2019/2020; and

   ·BAS for the applicant for July 2021 to 2022.

8. On 16 May 2023, the Tribunal wrote to Mr Rana via the agent to request that the following additional information be provided:

   (a) financial statements for 2021/2022 and Business Activity Statements (BAS) to date;

   (b) updated organisational chart indicating whether there are any other Retail Manager positions besides the nominated position within the business, and which employees are Australian citizens or permanent residents and which are temporary residents;

   (c) updated contract of employment for the nominee (if applicable);

   (d) submissions on what the correct Annual Market Salary Rate (AMSR) is for the nominated occupation, and the basis for this (eg Award or market rates);

   (e) submissions as to whether there is a continuing genuine need for the nominated position which cannot be filled locally; and

   (f) certification by relevant Regional Certifying Body (RCB).

9. On 30 June 2023, the Tribunal received the following documents from the applicant:

   ·draft financial statement for the applicant for 2021/2022;

   ·BAS for the applicant for July - September 2022;

   ·Regional Certifying Body advice dated 12 March 2019 from Regional Development Australia Northern Rivers stating that the nomination does not satisfy the requirement that there was a genuine need for the nominated position because ‘Retail Managers for non-specialised industries are not considered a skill shortage;’ and

   ·submissions on the correct Annual Market Salary Rate (AMSR) for the nominated occupation.

10. On 13 July 2023, the Tribunal wrote to Mr Rana via the agent to invite him to attend a hearing on behalf of the applicant on 2 August 2023, to be conducted by videoconference. He and the agent were requested to provide any additional submissions and/or documents in support of the case by 26 July 2023.

11. On 28 July 2023, the Tribunal received the following submissions from the agent:

    …

    1.We act for Pakridge Pty Ltd ABN 61 120 996 214 (the company/applicant).

    2.We also act for Mrs Gurpreet Kaur DHALIWAL (Gurpreet) in the related matter of Gurpreet Kaur DHALIWAL & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Administrative Appeals Tribunal – MR Division, File no. 1929962.

    3.Suzanne Weel, Australian Legal Practitioner (LPN. 5510871) has been appointed as the applicant’s representative, and as Gurpreet’s representative in the related matter.

    4.The application for review is listed for a hearing before Member A Mercer at 10:00am (NSW time) on Wednesday 2 August 2023 at the Administrative Appeals Tribunal (AAT) by video-conference using Microsoft Teams.

    5.Gurpreet’s application for review has also been listed for a hearing at 12:00pm (NSW time) on the same day by video-conference using Microsoft Teams.

    6.The purpose of this letter is to provide pre-hearing submissions in support of the company’s application for review.

    7.We anticipate that the decision on the review of the applicant’s review application will determine the outcome of Gurpreet’s related matter.

    
    

    Introduction

    1.Pakridge Pty Ltd ACN 120 996 214 was incorporated on 31 July 2006 and has been registered for Goods and Services Tax with ABN 61 120 996 214 during that time.¹

    2.The applicant operates multiple businesses providing fuel and convenience store services in regional Northern New South Wales.

    3.The applicant currently operates from the below sites:

Store Name	Location	Service offering
BP Penoil Lismore (the subject site)	131 Dawson Street Lismore NSW 2480	Fuel station and convenience store
BP City Entrance	2 Leycester Street Lismore NSW 2480	Fuel station, convenience store and Takeaway food and coffee
BP Broadwater	171 Pacific Highway Broadwater NSW 2471	Fuel station, convenience store and Takeaway food and coffee
BP Wardell (trading under an associated entity - Pakrana Pty Ltd)	Pacific Hwy & Fitzroy Street Wardell NSW 2477	Fuel station, convenience store and Takeaway food and coffee

4.Mr Shahzad Rana, the Director of the company, purchased his first fuel site around 16 years ago and is responsible for the management of the business group, overseeing projects and future planning for business expansion including property development.

5.The applicant currently employs a total number of 25 - 30 staff across the four business sites, comprising 8 - 12 at any one time at the subject site.²

6.Whilst the subject site has entered into a ‘Go Green’ Agreement with BP Australia Pty Ltd (BP), the site was established and is operated independently by the management of Pakridge Pty Ltd.³

7.The applicant is one of very few businesses through the BP ‘franchising’ model that is entitled to utilise the BP branding and fuel supply agreement, with the balance of the business decisions (i.e. from food and grocery pricing, product mix and marketing) being made independent of BP.⁴

8.The subject site has been operating in Lismore, NSW for more than 30 years. In addition to being a fuel station⁵, BP Penoil offers a wide range of merchandise including, groceries, chips, drinks, ice, confectionary, magazines and gift cards, as well as offering mechanical repairs, tyre, battery and parts servicing onsite to its customers.

9.The applicant has sponsored an application by Gurpreet for a Regional Sponsored Migration Scheme visa subclass 187 as a Retail Manager.

10.Gurpreet has worked for the company as the holder of a Temporary visa and subsequently a Bridging visa in the position of Retail Store Manager for a period of approximately five (5) years.

11.Gurpreet has applied for a Regional Sponsored Migration Scheme visa subclass 187 under what is described as the Direct Entry stream.

12.An application for a Regional Sponsored visa involves, relevantly, the approval of a nominated position under reg.5.19 of Migration Regulations 1994 (Cth) (the regulations); and the grant of a subclass 187 visa on the basis that the visa applicant is the subject of an approved nomination.

13.The company continues to employ Gurpreet as a full-time employee in the position of Retail Manager.

14.On 27 February 2018 the company lodged an application for approval of the nominated position of Retail Manager (General) (ANZSCO 142111) under regulation

5.19 of the regulations.

15.On 28 August 2019 a delegate of the Minister made a decision to refuse the company’s application for approval of the nominated position.⁶

16.The delegate found that the tasks to be performed in the position do not correspond to the tasks of an occupation specified in the relevant instrument.

Application for review

17.The company has applied for merits review of the decision of the delegate.

18.The Tribunal is empowered to exercise all of the powers and discretions that are conferred by the Migration Act 1958 (Cth) (the Act) upon the delegate.⁷

19.The Tribunal is entitled to treat government policy as a relevant factor in determining a review where exercising a discretionary power.⁸

20.In carrying out its functions, section 353 of the Act requires the Tribunal to “act according to substantial justice and the merits of the case”.

21.The Tribunal’s task for the purpose of the review is to make the “correct or preferable decision” on the material before it.⁹

22.On 19 October 2022, the Tribunal sent a letter to the applicant requesting updated and current information addressing the criteria in reg. 5.19(2) and (4).¹⁰

23.On 16 May 2023, the Tribunal sent a further letter to the applicant requesting updated information/documents.

Issues arising in relation to the decision under review

The delegates refusal decision

24.The Tribunal needs to decide whether it is satisfied that all the applicable requirements of reg. 5.19 are met at the time of its decision.

25.The Tribunal does not have the power to remit the application with a direction that certain requirements of reg.5.19 are met, as this is not a direction permitted by the regulations.¹¹

26.In the decision record issued by the Department of Home Affairs (the Department) the delegate records that assessment of the application has been undertaken having regard to the “usual relationship a franchisee has with a franchisor”.¹²

27.The delegate made a decision that as the tasks to be performed in the position did not correspond to the tasks of an occupation specified in the relevant instrument, reg. 5.19(4)(h)(ii)(D) was not met.

28.The delegate also found that as the applicant had not provided a copy of the certification from the Regional Certifying Body, reg. 5.19(4)(h)(ii)(F), was not met.

29.The delegate then proceeded to decide that on the basis the applicant had not satisfied the requirements of reg. 5.19(4), the application was refused.

30.The applicant understands that the particular issues that arise for determination by the Tribunal in this case, are as follows:

(a)Generally, whether all the applicable requirements of reg. 5.19 are met at the time of its decision;

(b)Specifically, if the tasks to be performed in the position did not correspond to the tasks of an occupation specified in the relevant instrument; and

(c)Whether the body specified by the Minister located in the same State or Territory as the location of the position has advised the Minister about matters contained in reg. 5.19(4)(e) and reg. 5.19(4)(h)(ii)(B) and (C).

Regulation5.19Approvalofnominatedpositions–Subclass187(Employer Nomination) visa

The relevant criteria rr.5.19(2) and (4) of the regulations

Application

31.The application was made on 27 February 2018 online, by means of the department’s ImmiAccount web portal using the approved form 1395 (internet).¹⁴

32.The application form contains the necessary declaration in response to conduct in contravention of s.245AR(1) of the Act.¹⁵

33.The letter of acknowledgement of the application, automatically generated by the department indicates that the application was accompanied by the prescribed fee.¹⁶

The application must be compliant: r.5.19(4)(a)

34.The Minister must approve the nomination if the requirements set out in reg. 5.19(2) and (4) are met.¹⁷

35.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 an identified person as a paid employee to work in the position under their direct control.

36.The applicant submits that on the basis of [38] – [41] above and the evidence currently before the Tribunal, the requirements in reg. 5.19(4)(a) are met.

Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

37.Regulation 5.19(4)(b) requires the applicant to demonstrate that it is actively, lawfully and directly operating a business in Australia.

38.The nomination application dated 28 February 2018 declares that the applicant commenced trading on 1 September 2006. The subject site commenced operation in 2007. The Tribunal is provided with current information which evidences that the applicant is actively, lawfully and directly operating a service station and convenience store (as well as other associated services) in Australia.¹⁸

39.The nominator will make oral submissions to the Tribunal regarding the current status of the business, as well as address the impact of the catastrophic floods which affected the business and the Northern Rivers area of New South Wales in 2022.

40.We respectfully submit that on the basis of the evidence currently before the Tribunal, the requirement in regulation 5.19(4)(b) is met.

Position is not labour-hire: r.5.19(4)(c)

41.The applicant is not a business which conducts activities relating to labour hire to an unrelated business.

42.We respectfully submit that on the basis of the evidence currently before the Tribunal, the requirement in regulation 5.19(4)(c) is met.

Term of employment of the visa holder: r.5.19(4)(d)

43.Regulation 5.19(4)(d) requires that the nominee will be employed on a full-time basis for at least two (2) years on terms that do not expressly preclude the possibility of an extension.

44.The letter of engagement between the applicant and Ms Gurpreet Dhaliwal dated 12 February 2018¹⁹ states:

1.1   Your start date in accordance with this letter of engagement, will be as soon as practicable following the successful grant of your Australian permanent residence, or sooner as agreed.

1.2   Your employment will be full-time and ongoing for at least two years with no exclusion to extension.

Emphasis added.

45.We observe that nothing in the letter of engagement expressly precludes an extension beyond two (2) years.

46.Gurpreet continues to be employed in the position of Retail Store Manager and the terms of the 2018 letter of engagement remain in place. We are instructed that no new letter of engagement or employment contract has been entered into by the parties, however, the terms and conditions of employment plus a salary increase were confirmed in a performance appraisal dated 3 July 2023.²⁰

47.We respectfully submit that on the basis of the evidence currently before the Tribunal, the requirement in regulation 5.19(4)(d) is met.

No less favourable terms and condition of employment: r.5.19(4)(e)

48.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.

49.At the time of application, the nominee was offered employment in the nominated position on a base salary of $56,000 per annum plus compulsory superannuation contributions. The letter of engagement provides for standard employment conditions that include superannuation, sick leave, and holiday entitlements.²¹

50.Market salary evidence supporting the remuneration offered to the nominee was provided to the Department.²²

51.The nominee’s currently salary has been increased to $60,000 per annum, plus compulsory superannuation benefits.²³

52.The Tribunal has been provided with current evidence of the Annual Market Salary Rate (AMSR) for the nominated occupation.²⁴

53.A review of popular employment web sites and other publicly available remuneration data indicates that the remuneration to be provided to the nominee is indicative of the current state of the market in this field.

54.We submit that the evidence available to the Tribunal supports that the nominee will be paid a salary that is no less favourable than that which would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

55.We respectfully submit that on the basis of the evidence currently before the Tribunal, the requirement in regulation 5.19(4)(e) is met.

No adverse information known to Immigration: r.5.19(4)(f)

56.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.

57.No adverse information has been drawn to the attention of the applicant by the Tribunal.

58.We are unaware of any adverse information about the nominator or a person associated with the nominator.

59.We respectfully submit that on the basis of the evidence currently before the Tribunal, the requirement in regulation 5.19(4)(f) is met.

Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

60.Regulation 5.19(4)(g) requires the applicant to have 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.

61.No information has been drawn to the attention of the applicant by the Tribunal to suggest that the applicant has other than a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

62.We are instructed that the applicant has a satisfactory record of compliance with the laws of the Commonwealth and New South Wales, relating to workplace relations.

63.We respectfully submit that on the basis of the evidence currently before the Tribunal, the requirement in regulation 5.19(4)(g) is met.

Assessment of the nominated position: r.5.19(4)(h)

64.Regulation 5.19(4)(h)(ii) requires the applicant to have met requirements listed under 5.19(h)(ii)(A) to 5.19(h)(ii)(A) to (F).

65.The abovementioned requirements are set out below:

“(A)  the position is located in regional Australia;

(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as 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- paragraph;

(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)”

Business is located in a regional area – Regulation 5.19(4)(h)(ii)(A)

66.The position and the subject site of the business is located in Lismore, New South Wales, and the postcode is 2480.

67.The nominee has been nominated to undertake employment at 131 Dawson Street, Lismore, New South Wales.

68.We respectfully submit that the location of the business is in a regional area, as specified under IMMI 17/059.

69.We respectfully submit that regulation 5.19(4)(h)(ii)(A) is met.

Genuine need for nominee to fulfil the position of a Retail Manager – Regulation 5.19(4)(h)(ii)(B)

70.The nomination application identified the nominee, Ms Gurpreet Kaur Dhaliwal, to work in the nominated position.

71.Gurpreet holds a Master of International Tourism and Hotel Management, together with a Diploma of Leadership and Management. The position required a minimum of a Diploma level management qualification, which were met by the nominee.

72.While the director of the applicant company has an active role in the management of his business interests, the responsibility for the day-to-day management of the subject site falls to Gurpreet.

73.Gurpreet has been employed by the applicant as Retail Store Manager for five (5) years. Gurpreet is employed in the nominated position and has been working in that role since 2018. The applicant’s instructions are that he requires Gurpreet in order to run the subject site.

74.Having regard to the position offered, the qualifications and skills of the nominee, we respectfully submit that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.

75.We respectfully submit that on the basis of the evidence currently before the Tribunal, the requirement in regulation 5.19(4)(h)(ii)(B) is met.

The position cannot be filled by an Australian citizen or Permanent Resident living in the same local area – Regulation 5.19(4)(h)(ii)(C)

76.The evidence before the Tribunal, including submissions to Regional Development Australia, Northern Rivers and a labour market testing report demonstrates that the position could not be filled by an Australia citizen or Permanent Resident living in the same local area.²⁵

Ongoing Skill Shortage

77.The applicant observes that as a consequence of the 2022 Lismore floods, businesses rebuilding are experiencing a significant lack of workers, placing greater pressure on attempts to resume to pre-flood and COVID-19 operations.²⁶

78.The current national unemployment rate (seasonally adjusted) remains at a 48-year low, at 3.5% accordingly to the ABS figures for May 2023.²⁷

79.Further, the Australian Government, National Skills Commission, Skills Priority List, 2022 records the occupation of Retail Manager (General) in the ‘Current National Labour Market Rating’ as ‘Shortage’ across all States and Territories of Australia.

80.The Regional Australia Institute (RAI) states that increasing overseas migration will be vital to the growth and sustainability of regional Australia following the release of the 2022 Population Statement on Friday 6 January 2023, from the Centre for Population.²⁸

81.In accordance with the above, we respectfully submit that the position of Retail Manager cannot be filled by an Australian citizen or permanent resident living in the same local area.

82.We respectfully submit that on the basis of the evidence currently before the Tribunal, the requirement in regulation 5.19(4)(h)(ii)(C) is met.

Tasks to be performed align with tasks set out under ANZSCO – Regulation 5.19(4)(h)(ii)(D)

83.Regulation 5.19(4)(h)(ii)(D) requires the tasks to be performed in the nominated position to correspond with the tasks for that or a similar occupation in the ANZSCO dictionary.

84.The employer’s application identifies Gurpreet as the nominated person and identifies her proposed occupation as that of a Retail Manager (General) (ANZSCO Code 142111).

85.A copy of the position description is contained in Department’s file at [6432544].

86.The nominated position of Retail Manager (General) is in the Unit Group 1421 ‘Retail Managers’. The ANZSCO sets out indicative skill level and tasks for the position as follows:

UNIT GROUP 1421 RETAIL MANAGERS

RETAIL MANAGERS organise and control 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 (ANZCO Skill Level 2)

…

At least 3 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 licencing may be required.

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.

87.We understand that the Tribunal will undertake a qualitative assessment to determine whether the position is what it purports to be in a practical sense.²⁹

88.We also refer the Tribunal to the decision of Wilcox J in the Federal Court in Singh & Salindera v MIEA [1993] FCA 451 where at [17] his Honour states:

“…It is not necessary to show that the person will exercise the high skill associated with the formal training and experience during the whole working day. There are many occupations in which a highly skilled person spends a good deal of time doing routine work that a lesser skilled person could carry out equally well; but where it is essential to have a particular form of training in order to meet the exigencies of the job as they occur from time to time, perhaps only for a relatively small portion of the time. If it is necessary for the person to have the requisite skills in order to occupy the position, this is enough to satisfy the regulation. It is not necessary to show that the skills are called upon for a major proportion of the working day.”

89.The above authority is useful when considering whether the nominee will likely perform the majority of the tasks of the nominated occupation. We submit that as

long as the position calls for the nominee’s skills as a Retail Manager to be used on a sufficiently regular basis, the appropriate finding is that the majority of the tasks that the nominee is actually likely to perform will align substantially with the tasks of the nominated occupation.

90.Gurpreet has been employed by the applicant in the position of Retail Store Manager for five (5) years. Gurpreet is employed in the nominated position and has been working in that role since 2018.

91.The subject site is positioned in an urban regional location close to residential homes and businesses.

92.As detailed above, the main activities of the business include fuel retailing, motor vehicle repairs, convenience shopping services and food services.

93.The subject site is considered to be a ‘one-stop’ shop for customers.

94.We are instructed that a Retail Manager is required by the applicant to oversee the daily activities and operations of the BP Penoil, Lismore business.

95.The applicant instructs that the nominee’s detailed duties and tasks include, but are not limited to the following:

(a)Management of the roadhouse café;

(b)Determining product mix, stock levels and service standards to maximise sales of magazines, newspapers, stationary and confectionary, as well as other gift items;

(c)Formulating and implementing purchasing and marketing policies in relation to products mix;

(d)Setting prices of confectionary and gift items stocked;

(e)Promoting and advertising products and specials, ensuring that the premises and displays are well maintained;

(f)Selling products to customers and advising them on product use;

(g)Undertaking monthly budgeting and ensuring overall financial performance by meeting targets;

(h)Following and implementing promotions and advertising for products and specials;

(i)Identify opportunities to increase sales and profitability;

(j)Organise stock checking and re-ordering as necessary;

(k)Receive deliveries, price goods, stock shelves, arrange displays and/or direct the undertaking of the duty;

(l)Be aware of changing customer trends and expectations based on local market;

(m)Dealing with queries and complaints from customers;

(n)Selection, training and supervision of staff; and

(o)Ensuring compliance with strict security, health and safety regulations and legal procedures are carried out.

96.We are instructed that the nominee is required to report to the applicant regarding the subject site and any identified issues.

97.While the nominee reports performance to the director in relation to all KPI’s and seeks input, we submit this should be seen as being consistent with a company directors corporate governance obligation/s and align with standard expectations of a Retail Manager reporting directly to a director of a business.

98.In determining that the predominant tasks of the position are not those of an ANZSCO Skill Level 2 Retail Manager, the delegate states as follows:

“The nature of a franchise arrangement is such that a significant proportion of the business operation is pre-determined by the franchise agreement, which exercises influence over many areas of the business operation.”

…

“…the fact that there may be strict requirements to be met as a result of using the BP brand…”

99.Having regard to the above, it appears that a broad brush approach to assessing this application was adopted, rather than giving the matter due consideration necessary required to identify that this was not a “usual relationship a franchisee has with the franchisor” and in fact the Go Green Agreement entered into with BP Australia Pty Ltd makes it abundantly clear that the retail business of the dealer (i.e. the applicant) is an independent business.³⁰

100.The submissions provided to Regional Development Australia, Northern Rivers dated 18 July 2018 ³¹ specifically addressed the following duties commensurate with ANZSCO skill level 2 tasks:

(a)  Determining product mix, stock levels and service standards

(b)  Formulating and implementing purchasing and marketing policies, and setting prices

(c)   Promoting and advertising the establishment's goods and services

101.Those submissions sought to address the nature of the franchise arrangement and alleviate any concerns regarding the above duties and/or that a significant proportion of the business operation was pre-determined by a ‘franchise’ agreement.

102.We are instructed that the applicant requires a Retail Manager to oversee the business at the subject site and to deal with a wide range of business activities, and not simply customer service or the training of staff as outlined in ANZSCO Code 621511 for a Retail Supervisor.

103.We are instructed that the applicant relies on Gurpreet for the effective and efficient daily management of the business, even more so following the 2022 floods.

104.The 2022 floods caused extensive damage to the applicant’s business sites, requiring considerable time to be spent dealing with all aspects associated with the floods and the re-opening of these businesses. The applicant continues to deal with the fallout of the floods even today.

105.We repeat our earlier submissions noting that although the nominating business is a BP dealer and must ensure that it uses its best endeavours to maintain the BP brand, the business is also independent and the position of Retail Manager is responsible for the determination of non-BP products including:

(a)  Product mix, stock levels and service standards;

(b)  The formulation and implemention of purchasing and marketing policies, and setting prices; and

(c)   The promotion and advertising of the subject site’s goods and services.

106.We respectfully submit that whilst the position includes several tasks included in ANZSCO 621511 (Retail Supervisor), the breadth of the role undertaken by Gurpreet is more aligned with the specified occupation of Retail Manager (General) ANZSCO 142111.

107.We respectfully submit that the tasks to be performed by Gurpreet in the nominated position are consistent with the tasks recorded in ANZSCO.

108.We respectfully submit that regulation 5.19(4)(h)(ii)(D) is met.

The business operated by the nominator is located at that place – Regulation 5.19(4)(h)(ii)(E)

109.The principal place of business of the nominator is located in Lismore, NSW 2480 in regional New South Wales. The nominated position is within the activities of the nominator located in regional Australia.

110.We respectfully submit that regulation 5.19(4)(h)(ii)(E) is met.

Regional Certifying Body – Regulation 5.19(4)(h)(ii)(F)

111.Regulation 5.19(4)(h)(ii)(F) intends a regional certified body to give advice to the Minister about certain aspects of the nomination criteria, specifically reg 5.19(4)(e), and regs 5.19(4)(h)(ii)(B) and (C).

112.On 12 March 2019, Regional Development Australia, Northern Rivers, a Regional Certifying Body (RCB) for the purpose of the visa, certified that the nominated position could be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position, as ‘Retail Managers for non- specified industries are not considered a skill shortage’.³²

113.Consistent with the decision in Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31, certification of the RCB is not sufficient, or determinative of the matters set out in the subject Regulations. Accordingly, while having regard to the advice provided by the RCB, the Tribunal may reach its own conclusions about the matters which are the subject of the RCB advice.

114.Efforts made by the applicant to fill the position with an Australian citizen or Australian permanent resident living in the same local area were included in the application submitted to the Department³³, and further repeat and rely on [85] - [88] regarding skill shortages generally.

115.The applicant respectfully asks the Tribunal to make the correct or preferable decision that having regard to the evidence provided, the position cannot be filled by an Australian citizen or Australian permanent resident living in the same local area.

116.The RCB has made an assessment and has advised the Minister in relation to the requirements of 5.19(4)(e), 5.19(4)(h)(ii)(B) and 5.19(4)(h)(ii)(C).

117.We respectfully submit that regulation 5.19(4)(h)(ii)(h)(F) is met.

118.We respectfully submit that on the basis that the requirement in regulation 5.19(4)(h)(ii) is met, the company satisfies the requirement in regulation 5.19(4)(h).

Supporting Documents

119.The following documentation is provided in support of the application for review:

No.	Document	Attach No. Page No.
1.	Organisation structure chart – July 2023	[1] 1
2.	Extract BP Australia Pty Ltd ‘Go Green’ Agreement	[2] 2 – 3
3.	Performance appraisal – Letter Pakridge Pty Ltd to Gurpreet Dhaliwal dated 3 July 2023	[3] 4 – 5
4.	Position work samples and photographs	[4] 6 - 35

Conclusion

120.The department refused the nomination application as the delegate formed the view that the tasks to be performed in the position did not correspond to the tasks of an occupation specified in the relevant instrument.

121.We respectfully submit that the application has been on review with the Tribunal for more than 46 months, and that the nominee, Mrs Gurpreet Kaur Dhaliwal has been employed in the business throughout this time.

122.We respectfully submit that the Tribunal may be satisfied that the company has a need for a paid employee and that the tasks to be performed in the position correspond to the tasks of a Retail Manager – ANZSCO Skill Level 2.

123.Accordingly, it is respectfully submitted the applicant satisfies regulation 5.19(4)(h) of the Regulations.

124.We respectfully submit that on the basis of the applicant’s submissions and the evidence provided, the correct and preferable decision is that the applicant meets the requirements of regulation 5.19 for approval of the nomination of the position in Australia.

125.The applicant respectfully asks the Tribunal set aside the decision under review and substitutes a decision approving the nomination.

…

1. The other documents provided are as described in the submissions above.

2. On behalf of the applicant, Mr Rana appeared before the Tribunal by videoconference on 2 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms Gurpreet Kaur Dhaliwel, by videoconference. The applicant’s agent also participated in the hearing by videoconference.

3. The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant and its director, both based in regional New South Wales. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. Mr Rana confirmed that he and his wife are the directors of the applicant company, and that he is also the director of several other companies, which operate businesses unrelated to the petrol stations operated by the applicant. The other businesses of which he is the director are mainly involved in construction and real estate. He clarified that all 4 petrol stations are operated by the applicant company, and that the table in the agent’s submissions stating that the BP Wardell site is operated by Pakrana Pty Ltd had been superseded.

5. In response to the Tribunal’s query, Mr Rana said that the nominee is the Retail Manager for the BP Penoil and City Entrance sites in Lismore, his son, Zubair Rana (an Australian citizen), is the Retail Manager at the BP Wardell site, while the BP Broadwater site was yet to reopen after the severe flooding that affected the Northern Rivers region in 2022. Mr Rana told the Tribunal that all 4 sites were severely affected by the flooding, with their buildings being destroyed. He said that the BP Penoil site was the first to reopen, about 5 or 6 months after the flooding, although it had to operate out of a demountable building for a period until significant renovations could take place.  All sites bar BP Broadwater were now fully operational, and BP Broadwater would reopen in several weeks’ time. Mr Rana clarified that BP Penoil now offered take away food and coffee, as did the other 3 sites, and this would continue as it was proving quite profitable and the council had approved the BP Penoil site for food and beverage operations.

6. In response to the Tribunal’s query, Mr Rana said that the nominee was managing both BP Penoil and BP City Entrance as the business had lost the Retail Manager for the latter site after the floods. He noted that those sites were only about 500 metres apart, so the nominee was able to divide her time between them reasonably easily, although she was originally only responsible for the BP Penoil site.

7. Mr Rana confirmed that the applicant’s in-house accountant had prepared the draft profit and loss statement for 2021/2022 for the applicant, which indicated that – despite the need to rebuild after the floods – the business still made a net profit of approximately $130,000.

8. Mr Rana confirmed that the franchise agreement between the applicant and BP means that the sites are required to purchase fuel and motor oil from BP and display its branding, but are otherwise free to choose their own stock for the shops at the petrol station, and determine the product mix. He told the Tribunal that some suppliers (generally major ones) such as Coke might dictate how or if their products could be discounted or promoted, but otherwise, the applicant had complete freedom to make these decisions in relation to the rest of its stock and products, and that this was the responsibility of the Retail Manager for each site. In relation to the staff, Mr Rana confirmed that the Retail Managers have the authority to hire staff and have the responsibility to provide them with induction training. In relation to terminating employment, Mr Rana said that this can only be done after a Retail Manager had recommended it and had a meeting with him, as he had determined that this was the best procedure to minimise Fair Work claims.  In response to the Tribunal’s query, Mr Rana said that the nominee, Ms Dhaliwel, was responsible for approximately 10 to 12 staff. In relation to rostering staff, Mr Rana said that the Retail Managers provide information about the availability of staff, and then the back office assistant accountant drew up the rosters. He told the Tribunal that it was efficient to centralise this function of the business as it meant that it was easier to transfer staff from 1 site to another, depending on the needs of the business.

9. Mr Rana confirmed that the BP franchise agreement does not affect the staffing situation, such as setting salary levels. He told the Tribunal that the applicant is a member of the NSW branch of the Motor Trades Association of Australia (MTAA), who provided advice about (amongst other things) remuneration for employees. He confirmed that the applicant pays above Award rates to its staff, and that the nominee’s salary had recently been increased to $60,000 per year (plus superannuation) due to her taking on additional responsibility for the BP City Entrance site.

10. Mr Rana confirmed that the Retail Managers are authorised to conduct the banking for their sites. He said that he and his accounting team set the budgets and targets but it was the responsibility of the Retail Managers to monitor how their site was tracking and provide daily sales figures, and it was up to them as to how they ensured that their site(s) met the budget targets. They were the ones who observed customer preferences (which might vary considerably between sites) and adjusted the stock mix to reflect what was popular and/or profitable. He relied on their feedback in relation to these matters.

11. In response to the Tribunal’s query, Mr Rana confirmed that it was also the responsibility of the Retail Managers to ensure that all staff complied with fuel and food service regulations, both of which being highly regulated areas.

12. The Tribunal noted that the advice of the Northern Rivers RCB in 2019 was that they did not consider that there were no suitable local candidates to fill the nominated position. Mr Rana responded that that was the RCB’s opinion but it was not reflected by his own experience. He described advertising continually to fill various positions within the business (including mechanics and console operators as well as Retail Managers) and that few candidates had the required experience or skill set. He noted that the local shortage of skilled workers had been exacerbated by the COVID19 pandemic and, subsequently, the 2022 floods, which saw many people leave the region. He said that with all of his businesses, he struggled to fill vacancies with suitable local applicants.

13. The Tribunal then took evidence from the nominee, Ms Dhaliwel. She told the Tribunal about her daily responsibilities, including taking delivery of stock and checking its quality, supervising the other employees and checking stock levels. She confirmed that if there are customer complaints, she is the point of contact to resolve them (unless they were especially complex, in which case she would talk with Mr Rana about them). She told the Tribunal that she and the other Retail Manager have fortnightly meetings with Mr Rana at which the budgets, stock and staffing issues are discussed.

14. In response to the Tribunal’s query, Ms Dhaliwel gave examples of the kinds of discounting and promotional decisions she made regarding stock such as magazines, newspapers, firewood and stock approaching its use by date. She said that she also kept a close eye on customer preferences and adjusted the stock orders and levels to reflect this, including the fuel orders (she noted, for example, that more fuel was sold during holiday periods at the 2 Lismore sites).

15. At the conclusion of the hearing, the Tribunal requested additional information to demonstrate that the nominee’s terms and conditions of employment were not less favourable than those offered to the Australian citizen employee undertaking the same role. It indicated that after it received this information, it expected to make its decision in late August or early September 2023.

16. On 15 August 2023, the Tribunal received the following submissions addressing r.5.19(4)(e):

    …

    No less favourable terms and condition of employment: r.5.19(4)(e)

    5. 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.

    6. At this juncture, we pause to note that Mr Zubair Rana, an Australian citizen performing equivalent work is not employed in the same workplace at the same location as the nominee, however, is employed at the Wardell site located at Pacific Highway & Fitzroy Street, WARDELL NSW 2477.

    7. The nominated position is located at BP Penoil, 131 Dawson Street, LISMORE NSW 2480.

    8. At the time of application, the nominee was offered employment in the nominated position on a base salary of $56,000 per annum plus compulsory superannuation contributions. The letter of engagement provides for standard employment conditions that include superannuation, sick leave, and holiday entitlements.

    9. Market salary evidence supporting the remuneration offered to the nominee was provided to the Department.

    10. The nominee’s currently salary has been increased to $60,000 per annum, plus compulsory superannuation benefits.

    11. The Tribunal has been provided with current evidence of the Annual Market Salary Rate (AMSR) for the nominated occupation.

    12. We are also instructed to provide a copy of Mr Zubair Rana’s most recent pay slip which reflects a current salary equivalent to $60,000 per annum, plus compulsory superannuation benefits.

    13. We submit that the evidence available to the Tribunal supports that the nominee will be paid a salary that is no less favourable than that which would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

    14. We respectfully submit that on the basis of the evidence currently before the Tribunal, the requirement in regulation 5.19(4)(e) is met.

    Conclusion

    15. We respectfully submit that on the basis of the applicant’s pre and post hearing submissions and the oral evidence provided, the correct and preferable decision is that the applicant meets the requirements of regulation 5.19 for approval of the nomination of the position in Australia.

    16. The applicant respectfully asks the Tribunal set aside the decision under review and substitutes a decision approving the nomination.

    …

17. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

18. 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 reg 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: reg 5.19(4)(a)

19. 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 an identified person as a paid employee to work in the position under their direct control.

20. The Tribunal has reviewed the Department’s file and is satisfied that the applicant made the application on the approved form, that no fee was payable as it is a regional nomination application, and that the nomination application contained the required s.245AR(1) certification. The Tribunal is also satisfied that the applicant identified a need to employ the nominee, Ms Gurpreet Kaur Dhaliwal, as a paid employee in the nominated position of Retail Manager (General) under the applicant’s direct control.

21. Accordingly, the Tribunal finds that the requirement in reg 5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

22. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

23. The Tribunal has reviewed the recent financial information provided by the applicant, including BAS for July - September 2022 – April 2023 and its draft financial statements for the financial year 2021/2022, and is satisfied that the applicant is actively and lawfully operating a business in Australia. The information provided indicates that the applicant’s business involves operating a BP petrol station/road house (including takeaway food sales) under a franchise agreement, in Lismore, regional New South Wales (NSW), postcode 2480.

24. Accordingly, the Tribunal finds that the requirement in reg 5.19(4)(b) is met.

    Position is not labour-hire: reg 5.19(4)(c)

25. 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.

26. There is no evidence that the applicant’s business activities include labour hire to unrelated businesses.

27. Accordingly, the Tribunal finds that r.5.19(4)(c) does not apply in this case.

    Term of employment of the visa holder: reg 5.19(4)(d)

28. 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.

29. The most recent employment agreement between the nominee and applicant is dated 12 February 2018. It provides that the nominee is employed on a full time basis on an annual salary of $56,000, and does not contain any limitation on the period of employment. (The Tribunal notes that the nominee’s salary has recently been increased to $60,000 per annum plus superannuation, but the other terms of her employment remain as per the 2018 contract).

30. Accordingly, the Tribunal is satisfied that r.5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

31. 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.

32. The organisational charts provided to the Department in 2018 and 2023 indicated that there is no equivalent Australian employee to the nominee in the role of Retail Manager (General). At hearing, however, Mr Rana indicated that his son, Zubair Rana, was the Retail Manager (General) of the Wardell BP service station operated by the applicant, and that he (Zubair Rana) is an Australian citizen.

33. As noted by the applicant’s agent in the most recent submissions, Mr Zubair Rana is not based in the same location as the nominated position, as the nominated position is located at the BP Penoil service station in Lismore (with some time spent in the nearby City Entrance site also operated by the applicant in Lismore). The Tribunal therefore accepts that there is no equivalent Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

34. In relation to whether the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, the Tribunal accepts that the nominee is presently paid $60,000 per year plus superannuation (as is Mr Zubair Rana).

35. The market salary analysis provided by the applicant’s agent on 30 June 2023 indicates that the applicant reviewed the job remuneration websites Jora, Seek, Jobted, Payscale, and Talent. The aggregated information from these sites (plus 1 Seek advertisement for a Retail Manager (General) based in Ballina in regional New South Wales) indicated that the salary range for the nominated position in Australia was $48,212 to $102,730, with the median salary being $62,523. The Tribunal accepts that the nominated position is found in a wide range of businesses and industry sectors, which accounts for the wide salary range. It further considers that the nominee’s salary (which is on parity with an Australian employee in the same role at another site) is within the salary range for the nominated occupation.

36. The Tribunal has reviewed the terms and conditions of the nominee’s employment contract and is satisfied that they are consistent with the National Employment Standards (NES).

37. Accordingly, the Tribunal is satisfied that the terms and conditions for the nominated position would be no less favourable to those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

38. Accordingly, the Tribunal finds that the requirements of reg 5.19(4)(e) are met.

    No adverse information known to Immigration: reg 5.19(4)(f)

39. 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 regs 1.13A and 1.13B.

40. The Tribunal has reviewed the Department’s records, including its electronic Integrated Client Services Environment (ICSE) records, and is satisfied that there is no adverse information known to Immigration about the applicant or any person associated with it.

41. Accordingly, it finds that r.5.19(4)(f) is met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

42. 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.

43. There is no evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with Commonwealth and New South Wales laws relating to workplace relations.

44. Accordingly, the Tribunal finds that the requirements of reg 5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

45. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant written instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

1. The nomination application indicates that the applicant’s business and the location at which the nominee will be employed is Lismore, NSW, postcode 2480.

2. This is specified in the relevant instrument, IMMI 17/059 as regional Australia, and therefore the requirements of the second dot point above must be met by the applicant in this case.

3. Given that the position and nominator’s business is located in regional Australia, the Tribunal is satisfied that rr.5.19(4)(h)(ii)(A) and (E) are met.

4. The Tribunal is satisfied that the relevant Regional Certifying Body (RCB), Regional Development Australia Northern Rivers, advised the Department of relevant matters about the position on 12 March 2019, albeit stating that the nomination does not satisfy the requirement that there was a genuine need for the nominated position because ‘Retail Managers for non-specialised industries are not considered a skill shortage.’

5. As r.5.19(4)(h)(ii)(F) merely requires that the relevant RCB has advised in relation to certain matters, not that it has made a positive assessment of the relevant matters, the Tribunal therefore finds that r.5.19(4)(h)(ii)(F) is met.

6. In relation to whether the applicant has a genuine need for the nominated position, the Tribunal has now been provided with considerable additional information about the nominated position and the nominee. While the Tribunal notes the RCB advice that it did not consider that Retail Managers for non-specialised industries were in short supply, the Tribunal also notes that this opinion was given by the relevant RCB in March 2019. Significantly, this was prior to the COVID19 pandemic of 2020 – 2022, and also prior to the significant flooding in the region in which the applicant operates which took place in 2022.

7. The Tribunal is satisfied that both these developments have had a significant effect on the supply of employees willing and able to live and work in the Northern Rivers region of NSW. The Tribunal accepts the evidence of Mr Rana at hearing that there is a shortage of Retail Managers (General) with sufficient training and experience to undertake the responsibilities of the nominated position. The Tribunal further notes that the Australian government’s National Skills Commission Priority List for 2022 (the most recent list published) lists the nominated occupation as in shortage in all states of Australia, with moderate future demand.

8. Given the above, the Tribunal gives greater weight to the more recent and specific evidence provided by Mr Rana and the National Skills Commission than to the 2019 RCB advice, and is satisfied that there is a genuine need for the applicant to employ the nominee as a paid employee, to work in the position under the applicant’s direct control. It therefore finds that r.5.19(4)(h)(ii)(B) is met.

9. It is further satisfied from Mr Rana’s evidence that, to date, the applicant has been unable to find suitable local candidates who are appropriately qualified and experienced to undertake the nominated position. As noted above, the latest National Skills Commission Priority List indicates that there is a shortage of Retail Managers (General) in NSW.

10. Given this, the Tribunal gives limited weight to the fact that the relevant RCB for the region has not certified that the position has been unable to be filled locally. While an RCB certification would generally be persuasive, it is not binding on the Tribunal, which must make its own determination about this issue. In this case, and as noted above, the Tribunal considers that the RCB certification is several years old now, and has not taken into account the intervening internal and external travel restrictions arising from the COVID19 pandemic from 2020 onwards, and the 2022 floods, both of which the Tribunal accepts would affect the number of suitable local candidates.

11. Accordingly, the Tribunal is satisfied that the position cannot be filled locally and it finds that r.5.19(4)(h)(ii)(C) is met.

12. The Tribunal is satisfied that the nominated occupation of Retail Manager (General) (ANZSCO code 142111) is listed in the relevant instrument for r.5.19(4), IMMI 17/058 and is not subject to any occupational caveat.

13. The Tribunal has compared the detailed position description for the nominated position with the occupational description for a Retail Manager (General) listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) online dictionary, which are as follows:

    ...

    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:

    • 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

    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.

    Retail Pharmacists are excluded from this occupation. Retail Pharmacists are included in Unit Group 2515 Pharmacists, in Occupation 251513 Retail Pharmacist.

    Skill Level: 2

    Specialisations:

    • Fast Food Manager
    • Newsagent
    • Retail Bakery Manager

    …

14. The position description provided to the Department in 2018 lists the following duties:

    …

    Summary

    You will organise and manage the day to day operations of Pakridge Pty Ltd which owns and/or operates four (4) fuel sites in the Northern Rivers areas of Lismore, Broadwater and Wardell.

    Your duties and responsibilities will include but are not limited to:

    ·Management of roadhouse café;

    ·Determining product mix, stock levels and service standards to maximise sales of magazines, newspapers, stationary, and confectionary, as well as other gift items;

    ·Formulating and implementing purchasing and marketing policies in relation to products mix;

    ·Setting prices of confectionary and gift items stocked;

    ·Promoting and advertising products and specials, ensuring that the premises and displays are well maintained;

    ·Selling products to customers and advising them on product use;

    ·Undertaking monthly budgeting and ensuring overall financial performance by meeting targets;

    ·Following and implementing promotions and advertising for products and specials;

    ·Identify opportunities to increase sales and profitability;

    ·Organise stock checking and re-ordering as necessary. This includes the maintenance of records of stock levels;

    ·Receive deliveries, price goods, stock shelves, arrange displays and/or direct the undertaking of the duty;

    ·Be aware of changing customer trends and expectations based on local market;

    ·Dealing with queries and complaints from customers;

    ·Selection, training and supervision of staff;

    ·Ensuring compliance with strict security, health and safety regulations and legal procedures are carried out;

    ·Perform other duties as and when required.

    Qualifications and work experience

    ·Post-secondary education – Diploma in Management or Business

    ·Work experience preferable but not essential.

    …

15. The delegate was not satisfied that the nominated position would involve the full range of tasks listed in ANZSCO, particularly since the applicant’s business operates as a franchise under the auspices of BP.  

16. The Tribunal had the benefit of taking detailed oral evidence from Mr Rana and the nominee at the Tribunal hearing. It is satisfied from their credible evidence that the nature of the franchise agreement between BP and the applicant does not dictate how the service stations operated by the applicant are run, beyond the fact that they must stock only BP fuel and oil products and display visual merchandising consistent with BP’s brand. The Tribunal is satisfied that the rest of the operations of the service stations are left to the applicant to manage as it sees fit, and that Mr Rana (as director of the applicant) has almost completely delegated the management of each service station to the Retail Manager responsible for it. The Tribunal accepts that Mr Rana is involved in a number of other businesses besides the service stations and does not actively engage in their day to day management, leaving this to the nominee (for BP Penoil and City Entrance in Lismore) and to his son, Mr Zubair Rana (for BP Wardell). It further accepts that Mr Rana is seeking another Retail Manager for the soon to reopen fourth BP site.

17. Having questioned Mr Rana and the nominee at length during the Tribunal hearing, the Tribunal is satisfied that the nominated position does exercise the majority of the tasks and responsibilities set out in ANZSCO for the occupation of Retail Manager, and that these are not prescribed or constrained by the franchise agreement with BP or because Mr Rana plays an active role as director. Rather, the Tribunal is satisfied that the nominee in her performance of her responsibilities exercises a considerable degree of autonomy in relation to staffing, product mix and pricing (with the exception of BP fuel and oil), training, OH& S compliance, record keeping, budgeting and dealing with customers. While she and Mr Zubair Rana report to Mr Rana, as the applicant’s director, they are largely responsible for running their respective sites with almost complete autonomy.

18. The Tribunal is therefore satisfied that the tasks to be performed in the nominated position correspond to the tasks of the occupation of Retail Manager (General) as set out in ANZSCO. It finds that rr.5.19(4)(h)(ii)(D) and (DA) are met.

19. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Alison Mercer
    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 an identified person, as  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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).