Raheem Pty Ltd (Migration)
[2023] AATA 2108
•7 July 2023
Raheem Pty Ltd (Migration) [2023] AATA 2108 (7 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Raheem Pty Ltd
REPRESENTATIVE: Mr Alasdair Colin Dougall
CASE NUMBER: 1917455
HOME AFFAIRS REFERENCE(S): BCC2017/4919702
MEMBER:Stephen Witts
DATE:7 July 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 07 July 2023 at 12:18pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – retail manager – tasks of occupation – supervisor or manager – documentary and oral evidence from owner and nominee – owners’ other work and families and little active input into business – difficulties finding suitable candidates in local area – nominee’s qualifications, skills and work in position – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)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 14 June 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).
The applicant applied for approval on 22 December 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 to work in the nominated occupation of retail manager ANZSCO code 1421111.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because the delegate was not satisfied that the nominated tasks correspond to the tasks of an occupation specified by the Minister.
The applicant, Mr Muazam Ali, appeared before the Tribunal on 13 June 2023 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee, Mr Muhammad Ashraf.
The applicant was represented in relation to the review.
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 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 Tribunal notes that it has been provided with a copy of the delegate’s decision by the applicant that indicate that the applicant was refused because the Department did not consider that the nominee has been carrying out the duties and responsibilities of a retail manager in accordance with ANZSCO code 1421111 in that the duties and responsibilities more accurately reflected the occupation of a supervisor rather than a retail manager. In particular it stated that retail supervisors have similar staff supervision, recruitment, sales management, customer service, and training responsibilities, but that retail managers also organise and control the operations of establishments which provide retail services, whereas the supervisor occupation supervises all and coordinate the activities of retail sales workers.
The Tribunal has considered all material before it including evidence provided prior to the hearing and evidence given at the hearing.
The Tribunal notes it has been provided with some material prior to the hearing including a genuine position statement, an employment contract, an employment reference, a statement from the nominee regarding his duties, and other material.
In regard to the genuine need statement the Tribunal notes that a copy of a statement was provided dated 16 December 2022 stating that the business trades as Eat Inn and is located in Bathurst in regional New South Wales and that the business specialises in serving pizzas, kebabs, and hamburgers. It was stated that the business is open from 4 PM until 9:30 PM three days a week and from 11 AM to 10 PM the rest of the week, that it is located in the main street and that the business has a constant flow of customers and is located in a busy retail area.
It was stated that since its establishment in 2017, AU$100,000 has been invested in the business to renovate the store and attract new customers, and that a new menu was introduced. It was stated that the retail manager is important for day-to-day business operations. The submission then proceeded to outline the list of duties associated with the position of retail manager as reflected in ANZSCO code 1421111.
It was stated that the nominee is important to the business because there is a shortage of workers across most industries throughout Australia, and that the business sought to find local workers but was not able to find suitable candidates. It was stated that they were able to find plenty of candidates with customer service skills but not with managerial skills and experience. It was further asserted that it is difficult to retain skilled staff in regional areas such as Bathurst.
It was further stated that the two owners are unable to manage the business on their own and that one owner lives with his family in Sydney and is employed in Sydney full-time, and that the other owner lives in Bathurst but works in a permanent part-time position with a government instrumentality. It was stated that he has four children and that it has been difficult managing his young family, and that he has had health problems, and also that he has elderly parents overseas that he needs to visit two or three times a year and that it has not been possible for either of the two owners to work full-time in business.
It was stated that the nominee has been employed in the business for over five years, and that he does work as a retail manager. It was reiterated that the two owners are not able to devote their time to the business as one has commitments in Sydney and that the other, as above, is unable to spend a significant amount of time in the business. It was stated that if they lose the nominee, they will probably close of business and this will affect them and eight Australian employees who may lose their jobs.
The Tribunal also notes that a letter was provided dated 11 March 2023 from the applicant’s representative stating that an application to nominate the nominee for a subclass 494 skilled employer visa was approved on 8 April 2023. It was noted that the nominee was to work in the same position as that identified in this nomination approval. It was also stated that the nominee’s remuneration was increased from AU$60,000-AU$75,000.
The Tribunal also notes that on 5 June 2023 the applicant provided further material to it including a 2022 tax return and profit and loss summary and financial information for 2020 and 2021 and also evidence of one of the directors’ Sydney residences.
The financial material provided indicates that for the year ended 30 June 2020 the total income from the business was approximately $390,000 and that it had a total operating profit of zero. It wages for this year was $89,000 and the superannuation contributions were $4900. For the financial year ending 30 June 2021 its total income was approximately $600,000 and its profit was approximately $13,000. It’s wages for that year was $106,000 and the superannuation contribution was $6400.
The year ending 30 June 2022 it was stated that sales of the business were approximately $600,000 and that the gross profit was approximately $400,000, wages were approximately $130,000 ending in a total operating profit of approximately $8000.
Also included was a letter of appointment dated 16 May 2023 for one of the directors, Mr Ali, for a position with NSW Health, for a job as a security assistant with a salary of $58,008.48.
The Tribunal notes that the occupation of retail manager in accordance with ANZSCO code 142111 states that retail managers organise and control the operations of establishments which provide retail services and that the tasks include:
determining product mix, stock levels and service standards
formulating and implementing purchasing and marketing policies, and setting prices
promoting and advertising the establishments 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 & Safety regulations
The Tribunal notes that in the signed letter from the applicant he stated that his initial duties upon the commencement of his employment included: setting up new menus, completing the paperwork with the council for new food premises, organising the stock suppliers and finalising contracts of supply, arranging electricity and gas connections, arranging phone and Internet connections, complete any artwork for signboards, organising signboards to be displayed, purchasing computer systems for the shop, signing up contractors, arranging rubbish bin collections, arranging shop renovation quotes, arranging for trades to work in the shop, organising new deliveries of equipment, hiring staff and training, converting paperwork with accountants for employee wages, completing food safety checklists, organising Workcover and insurance, completing council applications for the use of the footpath, signing up to Menulog, and creating online presence for the business.
He further stated that since his employment he has been responsible for recruiting staff and that this included posting advertisements, interviewing candidates, hiring and providing training to new staff members, maintaining a staff roster, conducting performance checks and working with government agencies for jobseeker recipients.
In regard to the menu of the business he stated that he sets different menus for different platforms, add new dishes from time to time, create promotions, and interacts with different online platforms regarding menu.
In regard to the financial aspects of the business he stated that he has regular meetings with the accountant on behalf the company, maintains records for the purpose of tax obligations, completes company financials, and works with an accountant to manage the annual tax return and other matters.
Regarding other business matters he stated that he involved himself in the purchase of new kitchen equipment, furniture, manages the website, and other matters. He also stated that he makes payments to suppliers, wage payments to staff members, and general banking activities of the business. He stated that he also as a retail manager manages the marketing aspects of the business and also works with the landlord.
At the hearing the Tribunal had a discussion with the applicant and the nominee regarding the application.
The applicant stated that he and his business partner have responsibilities other than this business. In particular the applicant stated that he has full-time employment as noted above and that he also assists his father in Pakistan in the construction business where every six months he returns to Pakistan for a month or so and manages the financial aspects of the business. He stated that he visits this business once a month and reviews the state of the business with the nominee and does so by checking sales information, discussing current issues and approving price increases. He stated that he has little active input into the business on a regular basis. It is noted that the material provided indicating that both partners were drawing directors fees of approximately $50,000 per annum.
The nominee stated that he first came to Australia in 2013 on a student visa and studied at bachelor level management and finance disciplines and completed his degree in 2016 and worked at Caltex as a store manager until 2017 when he started in business and that he has worked in this business as a retail manager for seven years.
The Tribunal had a detailed discussion with both the nominator and the nominee and found the evidence provided by both parties credible. The Tribunal has considered very carefully the evidence provided particularly in terms of the actual duties and responsibilities of the nominee and finds that the nominee was carrying out the full duties and responsibilities of a retail manager and was not just a store or retail supervisor.
In particular the Tribunal notes that the nominee does have duties and responsibilities that include the organising and financial control, as well as staff control, of the business and that the owners do not have any day-to-day or regular managerial involvement in the main activities of the business.
On that basis the Tribunal finds that the nominated tasks do correspond to the nominated occupation of retail manager in accordance with ANZSO code 1421111.
The application is compliant: reg 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 an identified person as a paid employee to work in the position under their direct control.
The Tribunal finds that the application was made in the approved manner and that it identified a need for the nominator to employ an identified person to work as a retail manager in accordance with ANZSCO code 1421111.
Accordingly, 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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal finds that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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 the nominator is not involved in labour hire activities.
Accordingly, this requirement does not apply.
Term of employment of the visa holder: reg 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, noting that the nominee has now worked in the business for7 years on a full-time basis, finds that an extension beyond two years from now is not expressly excluded.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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 notes the evidence provided and finds that the terms and conditions applicable to the nominee 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.
In particular the Tribunal notes that the applicant is being paid a rate of pay that is above the minimum income threshold for a temporary visa holder.
Accordingly the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
The Tribunal finds that there is no adverse information known to the Department about the nominator or a person associated with the nominator.
Accordingly the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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 finds that there is no evidence before it that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
Accordingly 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)
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, 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.
The Tribunal finds that the tasks will be performed in Australia and correspond to the tasks of an occupation specified as above in the relevant instrument and that there is a genuine need for the nominator to employ the person identified as a paid employee to work in the position under the nominator’s direct control and that the position has not been able to be filled by an Australian citizen or permanent resident who is living in the same local area.
Accordingly the requirements of reg 5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Stephen Witts
MemberATTACHMENT - 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).
Key Legal Topics
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Immigration
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Administrative Law
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Judicial Review
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Statutory Construction
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Procedural Fairness
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