Rahshi Group Pty Ltd Atf Rahshi Family Trust (Migration)

[2020] AATA 5857

Rahshi Group Pty Ltd Atf Rahshi Family Trust (Migration) [2020] AATA 5857 (1 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Rahshi Group Pty Ltd Atf Rahshi Family Trust

CASE NUMBER:  1800330

HOME AFFAIRS REFERENCE(S):          BCC2016/3035604

MEMBER:Terrence Baxter

DATE:1 December 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 01 December 2020 at 3:18pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Departmental Client of Interest note – Retail Manager (General) – financial capacity to maintain term of employment – losses in previous financial years – non-cash expenses – tasks of the nominated position – Donut King – franchise agreement – duties and responsibilities of the Store Manager – whether more closely aligned with those of an ANZSCO Skill Level 4 retail supervisory position – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

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 and Border Protection on 15 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, Rahshi Group Pty Ltd as trustee for the Rahshi Family Trust, applied for approval on 13 September 2016. The applicant nominated Ms Rajwinder Kaur (the nominee) in the position of Store Manager. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).

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 r.5.19(4)(h)(ii)(D) of the Regulations because 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.

5. Mr Rahul Rana, the sole director of the applicant, appeared by audio conference before the Tribunal on 18 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee by video conference.  

6. The Tribunal exercised its discretion to hold the hearing by video and audio conference through MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video and audio conference, having regard to the nature of this matter and the individual circumstances of the applicant. 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 video and audio conference.

7. The applicant was represented in relation to the review by its registered migration agent. The representative also attended the Tribunal hearing by video conference.

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.

   Evidence presented prior to the hearing

10. The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) documents including the following:

    a.An extract from the General Retail Industry Award 2010.

    b.The Australian and New Zealand Standard Classification of Occupations (ANZSCO) for unit group 1421 Retail Managers and for unit group 6215 Retail Supervisors.

    c.Online market salary evidence.

    d.An Employment Contract dated 6 September 2016 with a position description.

    e.Submissions from the applicant.

    f.ABN Lookup current and historical details forms dated 17 August 2016 and 12 December 2017 respectively.

    g.An ASIC business name summary for DK Mt Pleasant Kiosk B dated 24 August 2016.

    h.An extract from a Franchise Agreement with Donut King Australia.

    i.A Form 1404 issued by Chamber of Commerce and Industry Queensland dated 12 September 2016 with supporting report.

    j.An organisational chart for the applicant’s Mt Pleasant store.

    k.The applicant’s Profit and Loss Statements for the 2016 calendar and financial years.

    l.Activity statements for the quarters ending December 2015 to June 2017.

    m.A submission from the applicant’s accountant dated 9 February 2017.

    n.The applicant’s tax return for the 2016 financial year.

    o.An ASIC business name extract for Rahshi Accounting Service dated 12 December 2017.

    p.An ASIC company summary for the applicant dated 12 December 2017.

11. The applicant produced to the Tribunal documents including:

    a.Bank statements, superannuation statements and payslips of the nominee.

    b.Documents issued by or referring to the nominee as Store Manager.

    c.Activity statements for the quarters ending June 2018 to March 2020.

    d.Organisational charts for the applicant Trust together with charts for its Mt Pleasant, Canelands and Gladstone stores.

    e.An ASIC company summary and a current and historical company extract for the applicant both dated 7 July 2020.

    f.The applicant’s financial statement for the 2018 and 2019 financial years.

    g.The applicant’s tax return for the 2018 and 2019 financial years.

    h.Submissions from the applicant regarding the nominee’s employment dated 7 July 2020 and 10 July 2020.

    i.An ASIC business name summary for DK Mt Pleasant Kiosk B dated 30 April 2020.

    j.Reports dated August and September 2016 from JobSearch regarding advertising for the position

    k.Resumes of disqualified job applicants.

    l.A position description dated 9 July 2020.

    m.A signed Franchise Agreement with Donut King Australia dated 2 December 2015.

    n.A signed Outlet Licence Agreement with Donut King Australia dated 2 December 2015.

    o.An extract from the Department’s policy (PAM3) in relation to the position of Retail Manager.

    p.A submission from Retail Food Group (RFG) dated 22 December 2017.

    q.Current online market salary evidence.

    r.A submission from the representative dated 10 August 2020.

    s.Photographs of the store.

    Evidence presented at the hearing regarding the applicant’s operations

12. Mr Rana gave evidence regarding the business operations of the applicant. He said the Trust had been operating for almost five years and that it had operated the store at Mt Pleasant, where the nominee is employed, since November or December 2015. He stated that it was a Donut King store which sold doughnuts, hot dogs, coffee, cold beverages and other products. Mr Rana said that the Trust had operated other franchises from the same franchisor, RFG, including Michel’s Patisserie stores at Dalby and Strathpine, both of which were no longer operated by the applicant. He said that the applicant presently operated Donut King stores at Caneland Central, Mackay and Gladstone, as well as the Mt Pleasant store plus an independent café at Banyo, Brisbane. He said that Donut King is a very strong brand.

13. Mr Rana stated that he is a qualified accountant working for a company based in Brisbane. He said that he had previously operated a bookkeeping business but was no longer conducting that business since the Trust had expanded its businesses.

14. The nominee gave evidence regarding her employment by the applicant and the tasks performed by her in the position.

    Evidence presented after the hearing

15. After the hearing, the applicant produced to the Tribunal the following additional documents:

    a.A sketch plan from the lease of the premises.

    b.An ABN Lookup current details form dated 18 August 2020.

    c.A monthly sales report for the store for the 2015 to 2019 calendar years.

    d.The applicant’s Profit and Loss Statements for the 2019 financial year, itemised for individual stores.

    e.Further documents issued by or referring to the nominee as Store Manager.

    f.A Donut King recommended retail price list.

    g.Photographs of the store including evidence of prices charged in store.

    h.A submission from the applicant regarding the recruitment process for the position.

    i.Correspondence between the applicant and RFG regarding the appointment of nominated operators.

    j.A submission from RFG dated 30 August 2020.

    k.The Trust Deed for the Rahshi Family Trust and a Deed of Appointment of the applicant as trustee of the Trust.

    Departmental Client of Interest note

16. During the hearing, the Tribunal advised Mr Rana that, according to Departmental records, the Department regarded the applicant as a Client of Interest. The Tribunal notes that this notation refers to monitoring in relation the Subclass 457 visa scheme in 2015 and that the monitoring was satisfactory. The Tribunal does not regard the Client of Interest note to be relevant to this application and places no weight on the note. Mr Rana was advised accordingly at the hearing.

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

17. 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) of the Migration Act 1958 (the Act). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

18. Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (r.5.19(2) and r.5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act. The requirements of r.5.19(2) and consequently of r.5.19(4)(a)(i) are therefore met.

19. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that r.5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that r.5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of r.5.19(4)(a)(ii) and, for example, r.5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s control – clearly requiring a qualitative assessment, and r.5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of r.5.19(4)(a)(ii), and the requirement in relation to this application to satisfy r.5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under r.5.19(4)(h)(ii)(B) later in these Reasons.

    [1] Dictionary.com (accessed January 2020).

    [2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand r.5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of r.5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

20. The Tribunal considers that r.5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of r.5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Store Manager. The Tribunal is therefore satisfied that the application for approval identifies a need to employ a paid employee in the position of Store Manager under the applicant’s direct control such that r.5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s direct control for the purposes of r.5.19(4)(h)(ii)(B).

21. Having found that r.5.19(4)(a)(i) and (ii) are met, 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)

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

23. The applicant produced to the Tribunal recent taxation returns, financial statements and Activity Statements together with ASIC evidence that the applicant company is currently registered and that the business names used by the applicant are registered. The applicant also produced evidence that the applicant’s ABN status is active and that the applicant is registered for GST. Mr Rana gave evidence of the applicant’s business activities in Mackay, Gladstone and Brisbane.

24. The applicant’s financial statements show that the applicant had income as follows.

Period	2017/2018	2018/2019	2019/2020
Trading revenue	$2,451,034	$2,201,642	$2,052,138

1. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely several fast food franchises and a cafe.

2. Accordingly, the requirement in r.5.19(4)(b) is met.

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

3. 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.

4. Mr Rana stated that the applicant is not engaged in labour hire activities. There is no evidence before the Tribunal to suggest that the applicant is engaged in such activities.

5. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

6. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension

7. The Contract of Employment dated 7 December 2017 produced to the Tribunal provides that the nominee is to be employed on a permanent basis and that the position description is Retail Store Manager. The document further provides that the agreement is to commence on the grant of the nominee’s visa and is valid for a minimum of two years and renewable by mutual consent. The Contract states that the nominee is to be engaged for 38 hours per week. There is no express exclusion to extension. Accordingly, the requirement in r.5.19(4)(d)(ii) is met.

8. However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264).

9. The Profit and Loss Statements provided by the applicant to the Tribunal disclose the following trading figures:

2017/2018	2018/2019	2019/2020
Trading income	$2,451,034	$2,201,642	$2,021,700
Cost of goods sold	$568,880	$525,155	$460,527
Trading income	$1,882,154	$1,676,487	$1,561,173
Other income	$1,026	$87,876	$76,659
Total income	$1,883,180	$1,764,363	$1,637,832
Expenses	$2,014,714	$1,775,222	$1,473,067
Profit/(Loss)	($131,534)	($10,859)	$164,765

1. At the hearing, the Tribunal expressed its concern regarding the large loss of $131,534 in the 2018 financial year and the smaller loss of $10,859 in the 2019 financial year. (The financial statement for the 2020 financial was not then available and was produced after the hearing.) Mr Rana stated that the Trust had opened two cafes in 2017, including the Banyo café, and that losses were incurred in opening those businesses. He also said that losses had been incurred in operating the franchise in Dalby, that business having been closed on expiry of the relevant lease in January 2018. Mr Rana stated that the losses disclosed in the financial statements included significant amounts of depreciation which resulted from the write-off of assets on closure of the Dalby store. The Tribunal notes that depreciation claimed in the 2018 and 2019 financial years amounted to $101,696 and $83,506 respectively, and that these deductions do not directly affect the cash-flow of the business.

2. The Tribunal advised Mr Rana that, based on the financial statements available at the hearing, the Tribunal could have doubts regarding the applicant’s capacity to employ the nominee for a period of two years at her salary of $55,000 per annum. The applicant has subsequently produced a Profit and Loss account for the 2020 financial year which shows a profit of $164,765. The Tribunal also notes that, notwithstanding the losses incurred in the 2018 and 2019 financial years, the applicant’s Balance Sheets for those years disclose an excess of assets over liabilities of $66,299 and $56,859 respectively for those periods.

3. Evidence was presented to the Tribunal that the applicant has employed the nominee for at least the past three financial years at her nominated salary of $55,000 per annum. Accordingly, the Tribunal notes that the applicant has been able to pay the nominee’s nominated annual salary during that period.

1. On the basis of the evidence presented, the Tribunal is satisfied that, although the applicant did sustain losses in the 2018 and 2019 financial years, it has the financial capacity to employ the nominee in the position of Store Manager in accordance with the Contract of Employment and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in r.5.19(4)(d)(i) is met.

2. Accordingly, as the requirements of both r.5.19(4)(d)(i) and (ii) are met, the requirement in r.5.19(4)(d) is met.

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

3. 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.

4. The evidence before the Tribunal confirms that the applicant has no Australian citizen or permanent resident working full-time in the position of Store Manager at the same location at the present time.

5. The Contract of Employment provides that the applicant will pay to the nominee a salary of $55,000.00 per annum, plus superannuation in accordance with relevant superannuation legislation as varied from time to time. The nominee is entitled to leave in accordance with the Fair Work Act 2009.

6. The applicant produced to the Tribunal evidence in the form of copies of recent online job advertisements for the position of Retail Store Manager in rural Queensland. A number of positions were advertised on the portal seek.com.au in the range of $48,452 per annum to $69,999 per annum. There was evidence from Indeed that the average salary for a Store manager in Mackay is $50,353 per annum.

7. The Tribunal also has had regard to the certificate of the Regional Certifying Body being Form 1404 issued by Chamber of Commerce and Industry Queensland dated 12 September 2016, that the nomination satisfies the requirements set out in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C).

8. Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.

9. Accordingly, the requirements of r.5.19(4)(e) are met.

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

10. 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 of the Regulations. 

11. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.

12. Accordingly, the requirements of r.5.19(4)(f) are met.

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

13. 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.

14. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relation laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

15. 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)

16. 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 instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is 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 locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (see legislative instrument 17/058), 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.

    Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia

17. The most recent Contract of Employment provides that the nominee is to be employed at Mt Pleasant, Queensland 4740, a location in regional Australia according to the relevant instrument. Based on the evidence presented, the Tribunal is satisfied that the position is located in regional Australia. Accordingly, the requirements of r.5.19(4)(h)(ii)(A) are met.

    Regulation 5.19(4)(h)(ii)(B) – genuine need to employ a paid employee to work in the position under the applicant’s direct control

18. Mr Rana gave evidence regarding the need to employ a Store Manager at the location. He said that the business has the potential to generate profits for the applicant and that there were a number of limitations on his ability to manage the business personally. He referred to the significant distance between his location in Brisbane and the location of the business. He stated that he is fully committed to his role as financial controller with his employer and that he has family commitments to his wife and two young children. He said that, as a result of these commitments, he needed a manager in the store and that he had not physically visited the store since it opened almost five years ago.

19. At the hearing, the Tribunal did express concerns whether there was evidence that the store was sufficiently large to warrant the employment of a Store Manager at a salary of $55,000 per annum. The Tribunal observed that no evidence had been produced of the size or the annual turnover of the store. As to the size of the store, Mr Rana stated that, although the leased area of the store was relatively small, the lease included a licenced area for seating, dedicated for patrons of the store. The applicant subsequently produced an extract from the lease comprising a sketch plan of the lease of the shop and the licenced area. The applicant also produced financial statements disclosing that the annual sales of this store for the three most recent calendar years were as follows:

Year	2017	2018	2019
Sales	$596,883	$542,990	$566,313

1. The Tribunal is satisfied that the operations of this store are sufficiently substantial to warrant the employment of a Store Manager. The Tribunal asked Mr Rana whether, with his accounting skills, he could remotely look after the finances of the store and have an employee in a supervisory role in the store. He said that he could not manage the store remotely because of the demands of his current employment which were highly demanding and required him to work long hours, and his family commitments.

2. The Franchise Agreement requires that the operation of the store be controlled or overseen by a Nominated Operator. The applicant has produced evidence that the nominee is the Nominated Operator for this store. The Tribunal also has had regard to the certificate referred to in paragraph 43 above.

3. The Tribunal is satisfied that there is a genuine need for the applicant to employ a paid employee to work in the position of Store Manager at the location under the nominator’s direct control. Accordingly, the requirements of r.5.19(4)(h)(ii)(B) are met.

   Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area

4. At the hearing, the material relied on by the applicant to satisfy this requirement comprised reports dated August and September 2016 from JobSearch regarding advertising for the position, five resumes from applicants, the Form 1404 referred to in paragraph 43 and the advice of Chamber of Commerce and Industry Queensland dated 12 September 2016.

5. Mr Rana gave evidence regarding the recruitment process. He said that the position was advertised in 2016 or 2017 but that he could not recall the exact details. The Tribunal pointed out that the JobSearch report referred to receiving 12 applications. He said that there were no suitable applicants other than the nominee, having regard to the experience and qualifications required. The Tribunal noted that no copy of the job advertisement had been provided and invited the applicant to submit further evidence to satisfy this requirement.

6. The representative submitted that documents had been provided to the Regional Certifying Body and that the certificate of that body was sufficient to satisfy this requirement. The Tribunal advised the applicant that the Tribunal must consider and be satisfied of the matters about which the advice is provided, although the advice given by the certifying body will be relevant to that consideration. In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, the Court considered a similar requirement in the pre-July 2012 version of reg 5.19(4), and commented in obiter that the use of the word ‘advice’ undoubtedly puts beyond doubt the construction of r.5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative.

7. The applicant subsequently provided a report from Mr Rana regarding the recruitment process in which he detailed why the disqualified applicants were rejected. The Tribunal also notes the advice from the certifying body as to the advertising process of the applicant. The Tribunal also has had regard to the certificate referred to in paragraph 43 above.

8. Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, r.5.19(4)(h)(ii)(C) is satisfied.

   Regulation 5.19(4)(h)(ii)(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 subparagraph and the occupation is applicable to the proposed employee in accordance with the specification of the occupation

9. The occupation proposed by the applicant was Retail Manager (General) which has the six-digit ANZSCO code 142111 and which is specified in the relevant instrument, being IMMI 17/058. The tasks specified in ANZSCO for that occupation are as follows:

   ·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.

10. The Position Description provides as follows:

    Qualifications and Skills:

    • Minimum Diploma in Management (preferred Hospitality Management).

    • Relevant work experience is highly appreciated, but not essential from Australian     qualified person.

    Tasks and Duties include (but not limited to):

    • Determining product mix, stock levels and service standards

    • Monitoring sales data and stock levels, and studying trade, manufacturers' and market information to keep informed of changing market conditions

    • 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

    • Designing and implementing pricing, marketing, promotional and display strategies

    • Planning and implementing after-sales services to follow up customer satisfaction,  ensure performance of goods purchased, and modify and improve services provided

    • Setting prices goods according to budget

    • Reconciling Cash and EFTPOS Sales and banking.

    • Liaising with franchising management on long-term planning and sales promotions

    • Anticipating consumer trends and determining quantity, style and quality of goods to be purchased

    • Receiving samples from suppliers

    • Ensuring compliance with occupational health and safety regulations

    conferring with customers to assess their satisfaction with products and service

    • Selecting, training and supervising bakery and store staff, providing them with feedback about their performance

    • Controlling the operation of bakery’s production and quality procedures through planning of maintenance, designation of operating hours

    • Monitoring production output and costs, and adjusting processes and resources to minimise costs and making sure rules and regulations objectives are met

    • Organising transport for wholesale, special functions or orders if required

11. Based on the evidence submitted to the Department, the delegate was of the view that the predominant tasks of the position are not those of an ANZSCO Skill Level 2 Retail Manager, rather they are more closely aligned with those of an ANZSCO Skill Level 4 retail supervisory position. Accordingly, the delegate was not satisfied the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument.

12. The duties and responsibilities of the Store Manager set out in the position description are consistent with the tasks set out in ANZSCO. Mr Rana gave evidence of the tasks performed by the nominee in the position, which were also consistent with the tasks in ANZSCO. He said that the nominee looks after ‘pretty much everything in the store’.

13. Dealing with some of the tasks specified in ANZSCO, the evidence to the Tribunal was as follows:

    a.Determining product mix, stock levels and service standards – The Tribunal asked Mr Rana whether the product mix was governed by the franchisor. He said that this was not the case and that the product mix was determined by the store manager, in this case, by the nominee. He said that every region is different and that the store in Gladstone sells different products to those sold at Mt Pleasant. He agreed that the applicant was restricted to some extent under the Franchise Agreement in the range of products which could be sold in the store. However, he said that the franchisor offered a broad range of products and that the nature of the goods sold depended on the store itself and that the nominee made these decisions.

    b.Setting prices – Mr Rana stated that each store sets its own prices for products and that this was done by the nominee for this store. He was asked whether the franchisor determined the sale price of products. He said that the franchisor sets a recommended retail price but that the store manager had a discretion on pricing. He stated that the franchisor did not set a maximum price which could be charged. The Tribunal pointed out to him that the Franchise Agreement did give the franchisor the right to nominate maximum retail selling prices for products from time to time. He stated that the franchisor had never exercised this right and had only specified recommended prices. He said that the nominee had a discretion to fix retail prices different to the recommended price. Evidence was submitted to the Tribunal that product is sold at prices different to the price recommended by the franchisor.

    c.Undertaking budgeting for the establishment – Mr Rana stated that the nominee had full control of budgeting for the store. He said that she managed the pricing of products and determined which were the best-selling items. He said that she also controlled expenses such as the purchase of product and small items of equipment as well as staffing. He said that he was involved in only major items of expenditure such as store renovations which involve negotiation with the franchisor. He said that if additional staff were required during busy times, the nominee hired the extra staff without consultation with him and that she was expected to retain profitability in the store.

    d.Staffing – Mr Rana said that the nominee handled the staffing of the store including replacement of staff if an existing member left, and the hiring of additional staff when required. He said that the nominee was expected to limit wage costs within budget and that he was kept informed of staff changes during the nominee’s usual reporting to him.

    e.Promotion and advertising – Mr Rana agreed that the franchisor handled advertising and promotion on a national level. However, he said that the applicant was required to advertise on a local level and that this was the responsibility of the nominee. He said that this was done with flyers, in local magazines, at community events and on the public address system in the Shopping Centre.

14. The nominee gave evidence regarding her tasks which supported the evidence of Mr Rana (the nominee not having been present when his evidence was given). The representative made a lengthy written submission regarding compliance with this requirement. At the hearing, he submitted that, rather than the tasks of a manager being lessened under a franchise agreement, the responsibilities of the manager under the relevant Franchise Agreement are greater, involving compliance with Federal, State and Local Government regulations as well as the Franchise Agreement itself.

15. The Tribunal is satisfied that Mr Rana has no personal involvement in these tasks and that the nominee performs these tasks. Based on all the evidence, the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Retail Manager specified by the Minister in the relevant instrument, being IMMI 17/058 and that the occupation is applicable to the nominee. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.

    Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position

16. As set out in paragraph 53 above, the Tribunal is satisfied that the business operated by the applicant is located at Mt Pleasant, Queensland 4740 which is the same location as the address of the position to be filled. Accordingly, the requirements of r.5.19(4)(h)(ii)(E) are met.

    Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same state as the location of the position has advised the Minister about the matters mentioned in r.5.19(4)(h)(ii)(B) and (C)

17. The certificate referred to in paragraph 43 above was submitted to the Department. Accordingly, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.

18. Accordingly, having regard to the above findings, the requirements of r.5.19(4)(h) are met.

19. 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

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

    Terrence Baxter
    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).