Pilbara Juice & Smoothy Pty Ltd (Migration)

Pilbara Juice & Smoothy Pty Ltd (Migration) [2021] AATA 4896 (24 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Pilbara Juice & Smoothy Pty Ltd
CASE NUMBER:  1837861
HOME AFFAIRS REFERENCE(S):          BCC2017/1677421
MEMBER:Peter Emmerton
DATE:24 November 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 24 November 2021 at 1:26pm
CATCHWORDS
MIGRATION–nomination – Retail Manager – Direct Entry nomination stream – tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument – Tribunal is satisfied that the visa applicant is operating at the required level –applicant lawfully operating a business in Australia– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 December 2018 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).
The applicant applied for approval on 10 May 2017. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument.
The applicant represented by Mr Nirav Gurjar, Managing Director, representing Pilbara Juice and Smoothy Pty Ltd, appeared before the Tribunal, via video, on 24 November 2021 in a combined hearing with MRT file ref. 1903727 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Arzoo Harshadbhai Prajapati, the visa applicant.
The applicant was represented in relation to the review by its’ registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity owns and runs a Boost Juice outlet in Karratha, North Western Australia.
The total number of staff employed in the business subject to this review is 6 including the visa applicant.
The visa applicant’s responsibilities, previous experience, qualifications, current years of management responsibilities and attributes, substantially align with the duties associated with a Retail Manager (General), ANZSCO 142111, Skill level 2.
The visa applicant possesses an Advanced Diploma of Leadership Management, (AQF) obtained in Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in retail businesses with limited opportunities for advancement. This is exacerbated in regional areas. It is also aware of the increased difficulty in obtaining staff as a direct result of the inability to bring overseas workers into Australia and the dramatic reduction in permanent and temporary migration, which has resulted from our Covid-19 related border closures.
The Tribunal additionally accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period with the provision for extension. The current contract of employment dated 20 April 2017, stated the salary as $55,000 plus the Superannuation Guarantee which is currently 10%.
The Tribunal perused popular employment web sites to ascertain the current state of the market in this field. The Tribunal observed a substantial number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal accepts the widely circulated reports that the demands upon fast-food and restaurant outlets increased considerably during the current Covid-19 pandemic and has remained high. The financial documentation shows that it had a relatively brief overall impact upon revenues, due to a period of enforced closures but revenues rebounded to and subsequently exceeded pre-pandemic levels.
The Tribunal acknowledges that a ‘Satisfied’, RCB Certificate has been issued by the relevant certifying body. The date of the certificate is 5 May 2017.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes from the current Organisation Chart, that the business is operating on a staffing ratio of 6 persons including the visa applicant.
The Tribunal accepts as fact that the Director does not work in the business on a day-to-day basis but operates at the Managing Director level overseeing high level company requirements and relies heavily upon the visa applicant’s expertise to manage the overall retail operation. It also accepts as reasonable the statement indicating a need for a Retail Manager as the owner of the business is located approximately 250 kilometres away from the business and has additional work, business and family responsibilities. He stated during the hearing that he visits the outlet monthly, other than during the recent 2 months the visa applicant had as maternity leave, during which time his wife relocated to run the store and he and the children visited each weekend.
Evidence was presented to the Tribunal prior to the hearing and corroborated at the hearing of the owner of the nominating entity’s substantial other business interests and current building and development programmes. It is not practically possible for the nominator to actively participate in the entity under review other than at a Managing Director level.
It would appear logical that regardless of the skilful utilisation of technology, the Director is unable to undertake the daily duties of a Retail Manager (General) unless physically present in front of house for the substantial, 7 day per week operating hours of the dine-in and take away food and beverage business. Nor is it likely that the operation could successfully sustain itself, maintain quality outputs or meet its’ legal responsibilities in relation to OH & S, General HR matters, safe food handling governance requirements and Covid-19 Marshall stipulations without a relatively autonomous Retail Manager (General).
The Tribunal observes that a considerable additional impost has been placed upon retail outlets and delivery restaurants since the advent of the current Covid-19 pandemic and the implementation of resultant additional operating processes and procedures. This must undoubtably add even more immediate leadership responsibilities to this Manager’s role.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Retail Manager (General), under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1) Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has been provided with a range of, Profit and Loss Statements, including those produced for FY 2019, FY 2020, and FY 2021. In addition, relevant BAS documentation spanning the 2020 Calendar Year and the ATO Tax Return for FY 2020 were provided prior to the hearing, all of which correlated. ASIC Registration details were also researched by the Tribunal for this business entity. The Tribunal checked the status of the listed ABN, 89 607 492 071 which has been active since 5 August 2015 and due for review on 5 August 2022. The Tribunal has in addition perused the company web site and associated review sites. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has had regard to the most recent Employment Agreement dated 20 April 2017 and the detailed position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. It is noted favourably by the Tribunal that the visa applicant has been employed for a considerable number of years, (in excess of 4 years).
The Tribunal notes that the business appears to have growing substantial revenue and profit, year on year. The long-term stability of the nominating entity in an ever increasing and competitive market attests to the nominator’s ability to operate successfully.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services, particularly in light of the nominator’s stated need for focus upon his other business activities. It is aware that the workforce is mobile, that the specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses.
The Tribunal is also cognisant of industry competitor’s actively targeting competing businesses and trying to poach key staff to overcome their staff shortages or obtain a market advantage. In addition, it is observed that these roles are not always highly sought after by appropriately qualified personnel as they are relatively modestly rewarded but also present complex and challenging workloads, hours of operation and responsibilities. It is clear, that this has become even more difficult since the advent of the Covid-19 pandemic and the subsequent staff shortages because of the cessation of temporary and permanent immigration due to mandated order closures.
Current media and business reports associated with the analysis of consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This industry appears to be one such sector. The problem is exacerbated in regional areas or smaller States, particularly if an organisation is reliant upon temporary or permanent immigration as part of their labour source.
Business, Media, and Government reports are being circulated which indicate this is starting to be a drag upon business development. The Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.[1]
[1] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021
The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s current annual salary of $55,000 plus Superannuation Guarantee, as appropriate and is reflective of their experience relevant to the nominated position and the magnitude of the business. It notes that it is in-line with the current relevant Awards as are the conditions of employment and observes that the remuneration falls in the mid quartiles of similar roles in similar locations.
The Tribunal researched the salaries offered for comparable positions. It is satisfied that the remuneration and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. It is also acknowledged that the other work-place conditions stated in the contract align with current legislative and regulatory requirements. Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are located in regional Australia;
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by an Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size and scope of the nominating entity’s business operations and the extended staffing hours required due to the mandated 7 day per week operating hours of the outlet. It is self-evident from the previously stated evidence that the nominator cannot operate this business entity without a relatively self-contained general management structure in place unless they are actually present to manage the front of house and back of house operation and the day-to-day management responsibilities themselves.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
Evidence was presented to the Tribunal regarding the recruitment processes. An analysis of the recruitment process and candidate suitability was provided. A total of 5 applications were received with 3 being short listed and interviewed. This information was corroborated by both parties during the hearing. Additional Labour market Testing research was provided. The Tribunal accepts as fact the subsequent lack of suitably qualified and experienced applicants other than the nominee. The Tribunal is satisfied that an appropriately conducted and fair recruitment process was undertaken.
The Tribunal acknowledges at the time of this decision that there are a very large number and range of Retail Manager (General) roles, as listed by 1 popular employment web site, currently available throughout Australia, (more than 9,500) and 10 % of those roles are being recruited in Western Australia. The demands of the job, location, lack of advancement potential, hours and responsibilities of this role may not have proven overly attractive to some candidates. The relatively isolated location coupled with challenging climatic conditions in Northern Western Australia may also provide a substantial negative employment circumstance thus further limiting the already potentially limited candidate pool.
The Tribunal observes that a substantially more comprehensive evidence base was provided to it, than was presented to the delegate at the time of their decision. This is in part due to the more than 4 years which have elapsed since the original application was made, during which time the visa applicant has been employed by their current employer.
The Tribunal has formed the view that it is highly unlikely that the nominator would employ a person for more than 4 years at this level of remuneration if they were not actually performing the Retail Manager (General) level tasks as stated. If all that was required was a Supervisor level appointment, this could have been achieved at a substantially lower impost on the profit of the business. The Tribunal again notes that the Director is located a 3-hour, 250-kilometre drive from the business. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.

Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. This appears to be in part based upon an assumption that the Director may have worked within the business prior to his decision to alter his personal and business priorities. It was stated, by the nominator that this is a replacement role for the initial Manager. This assumption may have negated the need for a Retail Manager (General). This is clearly not the current situation with the Managing Director supervising a substantial number of businesses and the associated building and development activities. All of which are located 250 kilometres away, where he lives.
The Tribunal has formed a different view. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 142111 for Retail Manager (General) and the stated duties of the visa applicant. The Tribunal acknowledges that the ANZSCO descriptors are a guide, not a mandatory definitive reference. Once again, it notes that the business owner clearly occupies the role of Managing Director within the business. This assessment is supported in part by written and verbal evidence which was presented to the Tribunal regarding competing responsibilities and physical location.
The 7 day per week operating hours of the business coupled with the number of staff clearly indicates the need for an autonomous Retail Manager to operate and manage the business. The Tribunal notes that a Team Leader/supervisor role reports to this position. This can-not be undertaken by the Director unless he was present constantly and he so desired it without other business responsibilities. This would by necessity most likely lead to a considerable degree of autonomy being associated with the role, as is reasonably expected of a Retail Manager (General) in an ANZSCO level 2 designated position.
The visa applicant would most likely report performance in all KPI areas via established systems. This coincides with the Tribunal’s expectations of a Retail Manager (General) directly reporting to the Managing Director of a business.
The Tribunal acknowledges that this is a mid-sized hospitality operation with a mid-level annual turnover. It is also observed by the Tribunal that is a financially successful operation with substantial and increasing profitability, in part most likely as a result of good management. It is in no doubt the visa applicant requires a degree of flexibility and subsequent autonomy performing the many and varied work duties, as you might expect in such an operation.
It is aware that most, if not all Retail Managers assist from time to time with the lower order manual tasks which make up the core business. This in no way diminishes their key role as a Retail Manager, on the contrary it serves to reassure customers of their intrinsic value to the enterprise whilst training and mentoring the staff as to appropriate retail service levels.
The Tribunal has also concluded that a Retail Manager (General) is required to oversee the business and does operate largely in-line with the ANZSCO 142111 specifications to meet logistic, work health and safety and safe food handling governance requirements, whilst satisfying customer service, product quality expectations and requirements and acting as the Covid-19 Marshall.
The position of Retail Manager (General), ANZSCO 142111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal has had regard to a ‘Satisfied’ Form 1404 issued by an RCB, dated 5 May 2017. It is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton

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).

[2021] AATA 4896

24 November 2021

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