Prasanna Enterprises Pty Ltd (Migration)

[2018] AATA 5631

Prasanna Enterprises Pty Ltd (Migration) [2018] AATA 5631 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Prasanna Enterprises Pty Ltd

CASE NUMBER:  1800376

DIBP REFERENCE(S):  BCC2016/4034607

MEMBER:Peter Emmerton

DATE:10 October 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 10 October 2018 at 12:11pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Retail Manager (General) – tasks to be performed in position correspond to tasks of an occupation specified by the Minister – need for position identified – decision under review set aside

LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13, 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 Immigration on 18 December 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval of Retail Manager (General), ANZSCO 142111 on 22 September 2016. Mr Abhishek Sampath was sponsored by the applicant to work in the nominated position.

3. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in the relevant instrument.

6. The applicant represented by Ms Leena Ponneri, a Director for Prasanna Enterprises Pty Ltd, appeared before the Tribunal on 2 October 2018 in a joint hearing with MRT file ref 1805093 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Abhishek Sampath, the nominee. The Tribunal found all those presenting evidence to be credible and appeared to answer questions in an open and honest manner without obfuscation.   

7. The applicant was represented in relation to the review by its registered migration agent.

8. 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

9. 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.

10. 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 particular circumstances.

11. 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.

12. The nominating entity operates a Supermarket in Darwin, Northern Territory (NT).

13. The nominee has a Diploma of Leadership and Management, a Master of Information Technology and a Bachelor of Technology.

14. The Employment Contract signed by both parties on 18 September 2016 shows an annual salary of $54,600 Superannuation of 9.5%, for an average 38 hour work week.

15. The nominee reports directly to the nominating entity and he in turn manages 4 Customer Service staff.

16. The visa applicant’s responsibilities include the following:

    • Manage the store;
    • Responsible for Opening & Closing of the business;
    • Complete store operational requirements by scheduling and assigning employees;
    • Respond to customer complaints, requests, queries, and comments that are escalated by other staff members;
    • Follow up on Employee’s work results;
    • Check Stock Takings and Loss Prevention;
    • Find new ways to improve sales, improve sales targets, and analyze figures;
    • Ensure sales targets & customer service standard are set and met by the staff members;
    • Mentor and Train staff as required;
    • Responsible for recruitment & retrenchment of staff;
    • Prepare daily & weekly stock reports;
    • Order Stock as per requirement;
    • Communicate with suppliers and relevant bodies on a regular basis;
    • Ensure compliance with occupational health and safety regulations;
    • Check security camera recordings on a regular basis to ensure security;
    • Responsible for Occupational Health & Safety regulations compliance by all staff

17. The Tribunal questioned the nominator in substantial detail about the need for Ms Sampath’s position and why it could not be filled by an Australian citizen. The challenges associated with hiring and subsequently retaining a Retail Manager with Ms Sanpath’s qualifications, experience, attitude and background, into their relatively small organisation, were clearly articulated.

18. The Tribunal acknowledges that staffing stability is an acute issue relating to the transient nature of Darwin’s population. Evidence was provided to the Tribunal of the salary determination and recruitment process and advertisements, which were utilised when recruiting for this role. In addition, the Tribunal is aware of public statements made by the Chief Minister and Tourism Minister of the Norther Territory, discussing the population and tourism challenges in the NT and the financial incentives on offer, in order to attract population growth and skilled workers into the Darwin and the NT.

19. The Tribunal perused popular employment web sites prior to the hearing in order 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 is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position. This may add further weight to the argument that recruitment and retention has proven challenging.

20. The Tribunal also notes that an RCB Certificate has been issued by the relevant certifying body, following their acceptance of the compliance measures undertaken by the nominating entity. The date of the certificate is 12 December 2016.

    The application is compliant: r.5.19(4)(a)

21. 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.

22. 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).

23. The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in the relevant instrument.

24. The Tribunal notes and discussed with the nominator that the business is operating with clear KPI’s for the Manager, as you would expect of a General Manager reporting to owners of a business who clearly do not operate on a daily basis within the trading entity. It is also noted, by the Tribunal that the owners of the business have other business interests, which principally occupy their working day.

25. The Tribunal notes that the delegate expressed a view that the business was employing a Manager at a supervisory level 4, not a level 2 position as described by ANZSCO. The Tribunal does not have this view. It was demonstrated to the Tribunal that the nominee has clear responsibility for the supermarket operation. Substantial local factors must be determined by the Manager in his leadership of the business, these include Budgeting, staffing ratios, recruitment, retention and training, product mix selected from a large potential range on offer, local marketing materials and methodology, human resource issues including termination of employees and financial management of the operation.

26. 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. 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)

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

28. The Tribunal was provided with a range of Business Activity Statements including the 2017-18 FY Statements, Tax Return for 2017, Profit and Loss Statements for 2015, 2016 and 2017, the 3 most recent Tax Returns for the nominee and the ASIC Registration. The Tribunal also checked the status of the listed ABN. 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)

29. 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)

30. 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.

31. The Tribunal questioned the visa applicant in depth to test his knowledge of the skills required to function in the business and engage in the management activities claimed by the nominating entity. The answers showed a clear and detailed knowledge in regards to the day-to-day required activities.  The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period.

32. The Tribunal has had regard to the signed Employment Agreement dated 18 September 2016 and 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.

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

33. 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.

34. The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s annual salary of $54,600 plus Superannuation as appropriate and is reflective of his experience relevant to the nominated position. The Tribunal is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace. Accordingly the requirements of r.5.19(4)(e) are met.

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

35. 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)

36. 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. When the Tribunal questioned the parties regarding workplace conditions, it was evident that both parties were cognisant of workplace relations expectations. Furthermore, they were able to demonstrate an understanding of appropriate employee conditions as a way of retaining employees and subsequently provide quality business outcomes for their company. The Tribunal has reflected upon the fact that this industry employs a workforce, which operates in a competitive and transient environment where employees can easily more to a new position. 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)

37. 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 a 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.

38. The Tribunal has had regard to the size and scope of the nominating entity’s business operations, the length of the visa applicant’s employment, experience and qualifications and 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.

39. The Tribunal is satisfied 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.

40. 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 position of Retail Manager (General) ANZSCO 142111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position.

41. The Tribunal considered the tasks found in ANZSCO for this position and compared them to the job description provided by the applicant and the evidence provided at the hearing.  A clear alignment between the 2 has been demonstrated.

42. The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because they were not satisfied that the tasks to be performed in the position correspond to the tasks specified in the relevant instrument. The Tribunal has had the benefit of additional information upon which to base its’ decision. The Tribunal notes that the business owner is not active in an operational sense in the supermarket and relies heavily upon the Retail Manager to run the business.

43. Detailed questioning was undertaken by the Tribunal of both the nominating entity and the visa applicant in order to arrive at a clear and comprehensive understanding of the information before it. The visa applicant was able to demonstrate to the Tribunal that he regularly undertakes the tasks of the nominated position and anticipates that he will continue to do so. The passion for his role was self-evident as was the pride he exhibited for the business he manages. The Tribunal is satisfied that the position located in suburban Darwin NT, can properly be classified as a position for a Retail Manager (General), ANZSCO Skill Level 2. The Tribunal therefore finds that the nomination satisfies r.5.19(4)(h)(ii)(D) of the Regulations.

44. The Tribunal has had regard to Form 1404 issued by a RCB, dated 12 December 2016 and 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.

45. 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

46. 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).