PATEL (Migration)

[2020] AATA 4642

PATEL (Migration) [2020] AATA 4642 (21 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dhaval Mangalbhai PATEL
Mrs Binaben Pankajbhai PATEL

CASE NUMBER:  1804793

HOME AFFAIRS REFERENCE(S):          BCC2017/735403

MEMBER:Warren Stooke AM

DATE:21 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.223 of Schedule 2 to the Regulations;

·cl.187.233 of Schedule 2 to the Regulations; and

·cl.187.311 of Schedule 2 to the Regulations.

Statement made on 21 August 2020 at 5:53pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Mechanical Engineering Draftsperson – nomination approved upon review – decision under review remitted           

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.13; Schedule 2, cls 187.223, 187.233, 187.311

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 February 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager – ANZSCO Code: 142111.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant could not provide evidence of an approved standard business sponsor.

6. The applicants appeared before the Tribunal on 29 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the Director of Neev Pty Ltd, Mr Soneri.

7. The applicants were represented in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved standard business sponsor, as required in the regulations.

10. The applicant stated that he arrived in Australia in February 2015 and that he commenced working for the franchise in February 2017, where his initial job was as a casual. He stated that he is currently paid $55,000 per annum with 10 per cent superannuation.

11. The applicant confirmed to the Tribunal that he scored 6.5 as an overall score in an IELTS English language test on 5 October 2018.

12. The applicant provided evidence that his duties as a Retail Manager included:

    a.Selection of staff and maintenance of employee files and implement discipline policies;

    b.Maintenance of stock, especially perishable items;

    c.Maintaining financials for the business in accordance with set KPIs and perform the banking;

    d.Provide a safe working environment in accordance with OHS standards;

    e.Implement promotional events, including Christmas events;

    f.Maintain an employee roster;

    g.Maintain sales data and ensure pending perishables are pushed on specials;

    h.Handle customer issues and maintain records.

13. The applicant stated that he is always on-call and that he rosters on 3 to 4 days per week and that the Shift team leader covers in his absence. He also sometimes serves on the counter, if busy.

14. The applicant confirmed in evidence that he completed the following courses of study:

    a.Certificate III in Business completed 24 January 2015;

    b.Certificate IV in Business awarded 16 February 2016;

    c.Diploma of Business awarded 29 June 2016

    d.Advanced Diploma of Business awarded 7 December 2016.

15. The applicant also provided evidence that he completed a Bachelor of Commerce at the Kadi Sana Vishwavidyalaya University in India prior to coming to Australia.

16. The applicant provided an ATO Tax Group Certificate for 30 June 2017, that identified a gross income of $48,900 and evidence that he is currently paid $55,000 per annum plus superannuation of 10 per cent into the REST superannuation fund.

    Evidence of the Witness – Mr. Soneri

17. The witness, who is a Director of the company, operates a Red Rooster Franchise in Market Place Wagga Wagga. In this regard, the applicant provided evidence that the franchise has been registered with ASIC since 16 April 2015, with an ABN of 32 104 969 828. It was also stated that the franchise with Red Rooster commenced in 2011.

18. The witness stated that the franchise employs 13 to 15 employees, that includes 2 full-time employees and the applicant is the Restaurant/Retail Manager.

19. The witness stated that the business operates eight different franchises and his role is to provide oversight of the business by providing guidance and setting benchmarks. In this regard, the Director is responsible for the financials of the business and budgets.

20. The witness provided evidence that the applicant, as the Restaurant Manager/Retail Manager, performs the following duties:

    a.Day to day management;

    b.Compliance with legal obligations;

    c.Financial banking;

    d.Store ordering;

    e.Hiring, training and discipline of employees;

    f.Development of a customer driven culture and a suggestive selling environment;

    g.Plan and implement special events;

    h.Ensure compliance with health and safety requirements for food handling and staff in accordance with the franchise obligations;

    i.Communicate changes to food preparation formulas with staff;

    j.Follow policies and procedures outlined in the franchise manual;

    k.Ensure inventory levels are properly maintained and order to meet sales volumes;

    l.Maintain financial records, analyse performance of the store and report to the directors and create an action plan to improve store performance;

    m.Maintain company and customer expectations by providing an appealing store condition;

    n.Accepts responsibility for compliance and training in relation to occupation, health and safety.

21. In addition, the witness provided evidence that the Retail Manager maintains stock levels and undertakes ordering for the business and that the appplicant is responsible for store promotions (as directed by head office in Sydney) and initiatives like Christmas promotions, which are checked off with the Director.

22. The witness stated that the applicant is responsible to reconcile receipts and provides this data by email to the Director each night on a spreadsheet.

23. The witness stated that the applicant has no involvement in the relationship with the franchisor, which is the Director’s role.

24. The witness stated that the applicant was provided with a contract that commenced on 6 February 2017 and that the applicant was paid a salary of $52,000 (at time of engagement) plus superannuation, which is paid into the REST fund.

25. The witness stated that if he had only one store he would not need a Retail Manager, however, he has 8 stores within a 250km radius, whereby he lives in Canberra and that it was physically important for the business to be run from here (Wagga Wagga) and he thereby required the applicant as a Retail Manager.

26. The witness stated that the applicant only serves at the counter when there is a need, however, the primary task does not include work on the counter and that during his absence the Shift Supervisor will provide relief.

27. The applicant provided evidence that he is closely engaged with the community as part of his management role and organised a charity fund raiser with WIN Television, which raised $3,000.

28. The Tribunal canvassed the duties of a Retail Manager, as prescribed in ANZSCO Code: 142111 and the witness confirmed in evidence that the appplicant undertakes all of the prescribed tasks set out in the descriptor.

    Nomination of a position

29. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

30. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

31. The Tribunal is satisfied on the basis of the evidence from the nominating sponsor and the applicant that the position and business is located in ‘regional Australia’ and that the nominating sponsor applied for Regional Certification, which was granted on 28 March 2017 by Regional Development Australia – Riverina Inc for the occupation of Retail Manager – ANZSCO Code: 142111 and for the applicant on a salary of $52,000 (at that time).

32. The Tribunal is satisfied, that a Retail Manager is required for the Wagga Wagga franchised business to manage the full scope of the operation, excluding financial and specific franchise responsibilities, which are handled by the Director. As such, the Retail Manager, operates the Red Rooster Wagga Wagga business with duties that are consistent with the ANZSCO descriptor for a Retail Manager, under the direct control of the director. [Case Matter: 1801922 – approval of the standard business sponsor for the nominated position]

33. Further, the Tribunal is satisfied, on the basis of the evidence, that the applicant has been engaged in a position of Retail Manager, wherein all the attendant tasks of a Retail Manager are undertaken by the applicant. As such, the Tribunal is satisfied that the applicant is employed in a genuine Retail Manager position, as required under the regulations.

34. The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal about the applicant or a person associated with the nominator.

35. Therefore, cl.187.233 is met.

36. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

37. Further, on the basis that the Tribunal is satisfied that the primary applicant has me cl.187.223 and cl.187.233, it follows that the secondary applicant is a member of a family unit that has met the criteria for the granting of a 187 visa.

    DECISION

38. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.223 of Schedule 2 to the Regulations;

    ·cl.187.233 of Schedule 2 to the Regulations; and

    ·cl.187.311 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.