SIddi Pty Ltd (Migration)

SIddi Pty Ltd (Migration) [2023] AATA 1212 (28 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Siddi Pty Ltd
REPRESENTATIVE:  Mr Peter Watt (MARN: 0742076)
CASE NUMBER:  1923444
HOME AFFAIRS REFERENCE(S):          BCC2018/747118
MEMBER:Alison Mercer
DATE:28 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 28 April 2023 at 2:34pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – retail manager – duties of position – manager or lower-level supervisor – documentary and oral evidence from owner and nominee – owner living at a distance with other business and relying on nominee – nominee’s qualifications, experience and work in position – comparison of tasks of position and ANZSCO descriptions – nominee’s almost complete autonomy – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)

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 August 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, Siddi Pty Ltd (trading as Carnamah Roadhouse), applied for approval of its nominated position of Retail Manager on 14 February 2018. 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 reg 5.19(4)(h)(ii)(D) of the Regulations, which required that the duties of the nominated position corresponded with those of an occupation specified in the relevant written instrument. The delegate was not satisfied that the nominated position involved all of the tasks set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) occupational description for a Retail Manager (ANZSCO code 142111). In particular, the delegate did not accept that the nominee set the overall direction and objectives of the business, as the delegate found that she reported to the directors of the company, who undertook this aspect of the business. The delegate found that the nominated position was more closely aligned with the ANZSCO lower level occupation of Retail Supervisor, which was not an approved occupation for the purposes of r.5.19(4). The delegate was also not satisfied that there was a genuine need for the position within the company.
The Tribunal received a review application on 22 August 2019. It was lodged on behalf of the applicant by one of its directors, Ms Sravani Narayanasetty, and was accompanied by a copy of the delegate’s decision and an authority by which Ms Narayanasetty appointed a registered migration agent, Mr Peter Watt, as the applicant’s representative and authorised recipient for correspondence.
On 20 September 2022, the Tribunal wrote to Ms Narayanasetty via the agent to invite her, pursuant to s.359(2) of the Act, to provide current and updated information demonstrating that the applicant met all of the applicable criteria in r.5.19(4) (not just the criteria the delegate found were not met). The information was requested by 4 October 2022.
On 3 October 2022, the Tribunal received a request for an extension of time for the applicant to provide the information, and this was granted to 1 November 2022.
On 11 October 2022, the Tribunal received the following information:
·legal submissions from the agent;
·evidence of labour market testing undertaken by the applicant for the nominated position, including ads and invoices for the ads;
·position description for the nominated position;
·financial statements for the applicant for 2020/2021;
·various Business Activity Statements (BAS) for the applicant, 2020 – 2022;
·evidence of the applicant’s ASIC and ABN registration;
·employment contract between the applicant and the nominee;
·copy of certification issued by relevant Regional Certifying Body (RCB);
·organisational chart; and
·copy of ANZSCO occupational description for Retail Manager (General) (142111).
The agent made the following submissions:
…
To assist in establishing that our client can satisfy the relevant criteria, namely regulation 5.19
(4), the following information / documentation is provided for your consideration.
1. & 2. Mr [sic] Sravani Narayanesetty is the person authorized to speak and make decisions on behalf of Siddi Pty Ltd. He [sic] is a director and sole shareholder in the company. See attachment No 1.
3. Siddi Pty Ltd has been a registered proprietary company since the 13 November 2017. See attachment No 1. The financial reports for the financial years 2020 & 2021, along with a company tax return for the financial year 2021 are provided at attachments 2 & 3 inclusive. These confirm the company has been operating profitably.
Attachment No 4 provides BAS for the period 1/07/2019 - 31/03/2022.
4.          The current organization chart at attachment No 5 shows there are 4 staff employed, including the visas applicant Satya Gagana Sai.Donavalli
5.   INFORMATION ABOUT THE ROLES AND DUTIES OF THE NOMINATED POSITION.
A comparison of the job description provided at attachment No 6 with the tasks expected of a retail manager, as covered in ANZCO at attachment No 7 will show a close correlation.
6.   TERMS AND CONDITIONS OF EMPLOYMENT IN THE NOMINATED POSITION.
Whilst it is not a requirement for the visas applicant to be employed by his nominator prior to visas grant Ms Donavalli is currently employed on a full-time basis as a retail manager. The terms and conditions of employment that will apply following visas grant to her can be seen at attachment No 8.
The General Retail Industry Award indicates for a level 8 employee a salary of $56,474 would be appropriate,
Information available across various websites suggests a range of salary for a retail manager could be anticipated, indicates the average salary for a retail manager in WA is currently $62,000 and suggests a salary for a retail manager in regional WA to be $70, 469.
The salary of $58,785, currently being paid to Satya which will increase to $63,000 on her being approved for permanent residence, can be seen to be above the Industry Award rate and within the range suggested by the other websites referenced.
The other terms and conditions of employment on offer to Kavita [sic] are no less favorable than an Australian citizen or permanent resident could expect to receive.
8. The nominated position being in regional Australia.
Attachment No 9 provides evidence of the employer having advertised back in January 2018 to fill the vacancy.
Attachment No 10 is a declaration made by the nominator on the 29 January 2018 addressing his attempts to find a suitable person from within the Australian labor market.
The form 1404 at attachment No 11, signed off by the Regional Certifying Body Perth on the 21 February 2018, attests to the need for the vacancy to be filled and of the inability of the employer to fill the vacancy by an Australian Citizen or permanent resident.
9 & 10 Other Relevant Information.
The review applicant has not been subject to monitoring by the Department of Home Affairs in the past.
The review applicant has not been the subject of any investigation about a possible contravention of the law.
Attachment No 12 covers a declaration made by the review applicant attesting to both statements.
Attachment No 13 provides evidence of the range of duties currently being undertaken by the visas applicant.
…
On 4 April 2023, the Tribunal wrote to Ms Narayanasetty via the agent to invite her to attend a hearing on behalf of the applicant to be conducted by videoconference on 20 April 2023. The Tribunal requested that the nominee, Ms Donavalli, be available to give evidence, and further requested that any additional submissions be provided by 13 April 2023.
On 19 April 2023, the Tribunal received a letter of the same date from The Hon Melissa Price, MP, in support of the nomination application and the grant of visas to the nominee and her family. Ms Price stated that:
…
I am writing in relation to the application made to the Administrative Appeals Tribunal (AAT) by Mrs Satya Gagana Sai Donavalli and Mr Vishnuvardhan Konduru in respect of decisions to refuse to grant Regional Employer Nomination (Permanent) visas.
I understand the decision was made to refuse Mrs Donavalli's visa application based on the case manager's view that the performed position is more aligned to that of Retail Supervisor. I have been assured that evidence has been submitted to AAT that demonstrates Mrs Donavalli does in fact perform all tasks required for that of the nominated position - Retail Manager.
Concerningly, the processing timeframe for the tribunal has been ongoing since 29 September 2019, essentially placing restrictions on the family and thus the inability to make substantial plans for their future.
Having lived in the regional town of Carnamah since 2018, Satya and Vishnuvardhan have integrated themselves into this small community. October 2019 saw the birth of their son, who is celebrated and embraced by the Carnamah community. His birth took place just one month after application was made for AAT, he is now 3 ½ years old.
I support this application for review by the tribunal so that Mrs Donavalli and Mr Konduru can continue to deliver critical services to Carnamah, surrounding districts and visitors to the region. An approval to their application will see their hopes of working and living in rural Australia realised.
…
On behalf of the applicant, Ms Narayanasetty appeared before the Tribunal by videoconference on 20 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Donavalli, the nominee, who also appeared by videoconference.
The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, which is based in regional Western Australia. 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 videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Ms Narayanasetty confirmed that Siddi Pty Ltd operates the Carnamah Community Roadhouse, which is a BP affiliated service station that sells hot take away food, has dining facilities, and sells other products such as confectionary and accessories. She told the Tribunal that it is located inland, near the shore of the Yarra Yarra Lakes, between Perth and Geraldton. She said that it is the only roadhouse in town and is open 7 days per week from 6am to 7pm, with 24 access to fuel sales via credit card. Ms Narayanasetty said that she took over the business via Siddi Pty Ltd in 2017. At that time, there was another director of Siddi Pty Ltd, but she later resigned. Ms Narayanasetty told the Tribunal that she intended to run the business herself initially but then became pregnant, and realised that she would need a Retail Manager for the business. Ms Narayanasetty confirmed that she lives in Perth (approximately 300 miles south of Carnamah), now has 2 children (aged 5 and 7) and also runs another company, of which she is the sole director. Her other company leases 7 vending machines to venues in Perth, and Ms Narayanasetty was solely responsible for doing this as there were no other employees within this business. She told the Tribunal that she also assisted her husband in some of his work, as he is a Project Development Manager.
Ms Narayanasetty told the Tribunal that she advertised for a Roadhouse Manager in 2017 but was unable to find any suitable candidates. She said that there were 4 candidates, none of whom were local and none of whom had previous retail experience. In response to the Tribunal’s query, Ms Narayanasetty said that she recruited the nominee Ms Donavalli as she was aware of her as Ms Donavalli had been working in another roadhouse operated by her mother-in-law, so she had specific, relevant Retail Management experience and also had a Masters degree in Business Management.
Ms Narayanasetty told the Tribunal that it would be very difficult to replace Ms Donavalli now, as COVID19 border closures had further reduced the pool of available, suitable candidates, plus it remained difficult to attract and retain employees in remote regional areas such as Carnamah. She told the Tribunal that Ms Donavalli was fully responsible for running the roadhouse in both its day to day and longer term aspects. This included staff recruitment, induction and ongoing training and rostering, adherence to OH & S regulations and policies, budgeting (including preparing the quarterly BAS to be submitted to the company’s accountant, stock inventory, banking, reconciliations, and managing profit margins). Ms Donavalli was also responsible for implementing marketing and promotional activities, and had the authority to do so without requiring Ms Narayanasetty’s permission. Ms Narayanasetty told the Tribunal that she was satisfied that the business was operating in a profitable and self-sustaining way under the management of Ms Donavalli, with profitability around 38%.
Ms Donavalli and Ms Narayanasetty clarified that although the Roadhouse is affiliated with BP and must buy its fuel from their suppliers, they had the autonomy to choose the rest of the stock for the business themselves, and were not subject to particular operating procedures or policies enforced by BP. They noted that urban BP service stations had more influence from BP but service stations such as theirs, in remote areas and combined with a roadhouse, could largely operate as they saw fit.
Ms Donavalli explained how she ordered fuel for the business, which in part involved keeping electronic records of usage and sales via a system that she developed, and also monitoring travel apps which provide information about fuel prices in different areas to travellers and truck drivers. She noted that she could provide feedback to BP about needing to compete with other towns nearby to provide competitive fuel pricing, and did so. She noted that fuel consumption varied seasonally, depending on road trains and tourist numbers (for the Lakes and during wildflower season). She said that she monitored the business’ performance constantly and reviewed it quarterly for the purposes of preparing the BAS and to track (and if necessary) and adjust the stock and sales strategies.
In response to the Tribunal’s query, Ms Narayanasetty said that Ms Donavalli’s initial salary (circa January 2018) was $52,000 per year plus super and accommodation. Since then, her salary had been increased to $58,785 plus super and accommodation, and Ms Narayanasetty told the Tribunal that the base salary would be increased to $63,000 upon the grant of permanent residence. When asked by the Tribunal, she estimated that the value of the accommodation (provided onsite at the roadhouse) would be worth approximately $250 per week.
Ms Narayanasetty noted that Ms Donavalli had been running the business for nearly 6 years now and was successful, hardworking and used her initiative to further the interests of the business, which was reflected in its increased profitability over that period. Ms Narayanasetty gave an example of Ms Donavalli advising her that the business did not require a full time Chef as she was able to teach the existing staff how to prepare a basic range of meals, so that any employee could do so if needed. Ms Narayanasetty said that she had virtually no hands on management of the business as everything was done by Ms Donavalli.
Ms Donavalli gave further detailed evidence about her duties and responsibilities, noting that she had limited ability to set fuel prices, but did have the authority and the knowledge to set the prices for the food and other non-fuel products, to maximise profit margins, yet satisfy customers’ needs.
Following the hearing, the Tribunal agreed to adjourn its decision for a short period to enable additional material to be provided.
On 27 April 2023, the Tribunal received the following additional material:
·letter dated 24 April 2023 from Ms Narayanasetty confirming that the nominee was being provided with accommodation at no cost, and that the accommodation consisted of a 3 bedroom, 1 bathroom house, with an approximate rental value of $250 per week (or $13,000 per year), compared with similar properties in the area;
·letter dated 24 April 2023 from ANZ confirming that the nominee is a signatory to the applicant company’s bank account;
·financial report for the applicant for 2021/2022, showing turnover of $809,975, gross profit of $319,565 and wage payments of $206,699;
·BAS for the applicant for 1 July 2022 to 31 March 2023; and
·ASIC Current Company Extract for Sri Varad Corp Pty Ltd, listing its sole director, secretary and shareholder as Ms Narayanasetty.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF LAW, 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 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 has reviewed the Department’s file and is satisfied that the applicant made the application on the approved form, that no fee was payable as it is a regional nomination application, and that the nomination application contained the required s.245AR(1) certification. The Tribunal is also satisfied that the applicant identified a need to employ the nominee, Ms Satya Gagana Sai Donavalli, as a paid employee in the nominated position of Retail Manager under the applicant’s direct control.
Accordingly, the Tribunal finds that 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 has reviewed the recent financial information provided by the applicant, including BAS to March 2023 and its financial statements for the financial year 2021/2022, and is satisfied that the applicant is actively and lawfully operating a business in Australia. The information provided indicates that the applicant’s business involves the operation of the Carnamah Community Roadhouse (comprising fuel sales, retail products and dine in and take away food) in Carnamah, in regional Western Australia.

Accordingly, the Tribunal finds that 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.
There is no evidence that the applicant’s business activities include labour hire to unrelated businesses.
Accordingly, the Tribunal finds that r.5.19(4)(c) does not apply in this case.
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 most recent contract of employment between the applicant and nominee is dated 18 January 2018, which specifies that the nominee’s employment is not limited to 2 years, and that her annual salary is $52,000 plus superannuation. More recently, it was submitted that the nominee’s salary would be increased to $63,000 per year upon the grant of permanent residence to her. Information was also provided indicating that free accommodation is part of the nominee’s package, and will continue to be.
The Tribunal is satisfied from the most recent financial statements for the applicant for 2021/2022 that it has the financial capacity to pay the nominee $63,000 per year for at least 2 years (plus superannuation) and to continue to provide accommodation to her.
Accordingly, the Tribunal finds that 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 is satisfied from the statements provided on behalf of the applicant, and its most recent organisational chart, that there is no equivalent Australian employee performing equivalent work in the same work place at the same location as the nominee.
The nominee’s current contract of employment (dated 18 January 2018) provides for an annual salary of $52,000 (rounded to the nearest dollar), plus superannuation, for a full time position. As noted above, it has been submitted that this would be increased to $63,000 per year upon the grant of permanent residence to the nominee (although no written undertaking or contract to this effect was provided). The Tribunal is satisfied that its terms and conditions relating to annual leave and other types of leave are consistent with those set out in the National Employment Standards (NES) devised by the Australian Fair Work Commission.
In relation to whether the nominee’s salary is no less favourable than the salary that would be paid to an Australian employee performing equivalent work in the same location, the Tribunal has had regard to the market salary information provided by the applicant, as follows:
·General Retail Industry Award – this provides for an annual salary of $56,474 for a level 8 employee;
· – this provides that the average salary for a Retail Manager in WA is currently $62,000; and
· – this indicates that the salary for a Retail Manager in regional WA would be approximately $70,469.
The Tribunal is satisfied that the proposed salary of $63,000 exceeds the applicable Award rate (a level 8 employee being the highest under the General Retail Industry Award) and slightly exceeds the Indeed average figure for a Retail Manager in WA. While it is lower than the Payscale figure, the Tribunal notes that the nominee’s package also includes free accommodation to the estimated value of $13,000 per year, which if included would mean her total package exceeds the Payscale figure (and falls within the average annual salary range on the Seek.com.au website for Duty Managers of $65,000 to $70,000). The Tribunal also accepts that Retail Manager positions can be found in a wide variety of businesses of different sizes and sectors, and thus a fairly wide salary range could be expected.
Given the above, and on balance, the Tribunal is satisfied that the terms and conditions applicable to the nominated position 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.
Accordingly, the Tribunal finds that 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 has reviewed the Department’s records, including its electronic Integrated Client Services Environment (ICSE) records, and is satisfied that there is no adverse information known to Immigration about the applicant or any person associated with it.
Accordingly, it finds that r.5.19(4)(f) is 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.
There is no evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with Commonwealth and Western Australian laws relating to workplace relations.
Accordingly, the Tribunal finds that 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 in the relevant written instrument, 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 online application form indicates that both the nominating business and nominated position are based in Carnamah, Western Australia, postcode 6517. The relevant instrument, IMMI 17/059, specifies that this postcode is in ‘regional Australia.’ The Tribunal therefore finds that rr.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal is satisfied that the applicant provided to the Department a certification from the relevant RCB, the Government of Western Australia Department of Training and Workforce Development, dated 21 February 2018. It is therefore satisfied that r.5.19(4)(h)(ii)(F) is met.
IMMI 17/058 contains the nominated occupation of Retail Manager (General) (ANZSCO code 142111) and is not subject to any occupational caveats.
As noted above, the delegate was not satisfied that the nominated position did, or would, involve the full range of duties set out in ANZSCO for a Retail Manager (General) (ANZSCO code 142111). Rather, the delegate considered the duties of the position were more closely aligned to a lower skilled ANZSCO occupation, that of Retail Supervisor (ANZSCO code 621511), and that the more strategic, higher level aspects of the position of Retail Manager would be carried out by the applicant’s director, Ms Narayanasetty.
The Tribunal has reviewed the position description provided by the applicant, as follows:
…
Retail Store Manager carries the following responsibilities and duties but not limited to:
·Selling goods and services to customers and advising them on product use;
·Determining product mix, stock levels and service standards;
·Assisting customers and responding to customer complaints, requests, queries and comments;
·Controlling selection, induction, training and supervision of staff;
·Finding new ways to improve sales, meet sales targets, analyse figures, forecast volumes and strategise;
·Promoting and advertising the establishment’s goods and services;
·Reconciling and maintaining records of stock levels and financial transactions;
·Undertaking budgeting for the establishment;
·Formulating and implementing purchasing and marketing policies, and setting prices;
·Maintaining stock levels, ensuring the quality of supplies, and supervising the quantity, type and scheduling of orders;
·Conducting frequent stock takes to ensure inventory is controlled and minimise the wastage and losses;
·Ensuring compliance with occupational health and safety requirements;
·Staff rostering, communicating, execution, updating time sheets to payroll departments;
·Conduct regular audits to ensure all OH & S documentation is compliant as per the standards;
·Communicating with corresponding departments and authorities to report day to day operations and issues;
·Policies and procedures may be introduced from time to time which are to be strictly adhered to.
…
The ANZSCO occupational description for Retail Manager is as follows:
…
142 Retail Managers
Retail Managers organise and control the operations of establishments which provide retail services.
Indicative Skill Level:
Most occupations in this minor group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
- AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand:
- NZQF Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
- 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
Subcategories
1421 Retail Managers
…
The ANZSCO occupational description for a Retail Supervisor is as follows:
…
6215 Retail Supervisors
Retail Supervisors supervise and coordinate the activities of retail sales workers.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
- AQF Certificate II or III (ANZSCO Skill Level 4)
In New Zealand:
- NZQF Level 2 or 3 qualification (ANZSCO Skill Level 4)
At least one year of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
- ensuring that customers receive prompt service and quality goods and services
- responding to customers' inquiries and complaints about goods and services
- planning and preparing work schedules and assigning staff to specific duties
- interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances
- instructing staff on how to handle difficult and complicated sales procedures
- examining returned goods and deciding on appropriate action
- taking inventory of goods for sale and ordering new stock
- ensuring that goods and services are correctly priced and displayed
- ensuring safety and security procedures are enforced
Occupation:
- 621511 Retail Supervisor
621511 Retail Supervisor
Alternative Titles:
- Checkout Supervisor
- Sales Department Supervisor
Supervises and coordinates the activities of retail sales workers.
Skill Level: 4
…
As noted by the delegate, the ANZSCO occupations of Retail Manager and Retail Supervisor have many duties/responsibilities in common; notably:
·dealing with customers and resolving issues with them;
·hiring and training staff;
·ensuring compliance with applicable OH & S regulations and policies; and
·maintaining stock inventory and keeping financial records.
However, as also noted by the delegate, the positions can be distinguished by the fact that the occupation of Retail Manager involves higher level and more senior responsibilities which are not part of the duties of a Retail Supervisor; namely:
·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
·undertaking budgeting for the establishment
Having had the benefit of additional documentary evidence, and detailed oral evidence from the applicant’s sole director, Ms Narayanasetty, and the nominee, Ms Donavalli, at the hearing, the Tribunal is satisfied that the nominee has almost complete autonomy over the business’ operations and does in fact carry out higher level and more senior responsibilities which are not part of the duties of a Retail Supervisor; namely:
·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
·undertaking budgeting for the establishment
While some aspects of the above duties are limited within the scope of the operations of the Roadhouse, where its fuel is linked to BP as its sole supplier, the Tribunal is satisfied from the evidence at hearing that the nominee exercises decision-making authority in relation to determining the product mix of non-fuel products, and of the stock levels of both fuel and non-fuel products. It is further satisfied that she does so without having to obtain the permission of the director, Ms Narayanasetty, who is ‘hands-off’ when it comes to the operation of the Roadhouse, as she lives in Perth and runs another company there. The Tribunal is satisfied that the nominee has the authority to make financial decisions on behalf of the business (and is a signatory to its bank account), including pricing decisions such as promotions and/or discounts and undertaking budgeting and reconciliations for the business.
While the Tribunal acknowledges that there may be fewer ‘large scale’ strategic decisions required in a business such as the Roadhouse (compared to, say, a large corporate organisation in an urban city with multiple fields of operations), it is nevertheless satisfied that the nominee exercises a high degree of responsibility and strategic decision-making in relation to the Roadhouse, and that these duties exceed those of a Retail Supervisor, and encompass a number of strictly regulated areas such as fuel sales and food sales.
Accordingly, the Tribunal is satisfied that 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 the applicant therefore meets r.5.19(4)(h)(ii)(D) and (DA).
The Tribunal is satisfied that the nominee has been in the nominated role since 2017, when Ms Narayanasetty acquired the business and recruited a Retail Manager upon becoming pregnant and realising that she would be unable to run the business directly herself. This is now a period of approximately 6 years in which the nominee has been responsible for the operations of the Roadhouse. The Tribunal accepts that the position is genuinely needed within the business, as Ms Narayanasetty is not a hands-on director, and the ANZSCO duties of a Retail Supervisor fall short of what the nominee is required to be responsible for in operating the business almost completely autonomously.
Moreover, the Tribunal accepts Ms Narayanasetty’s evidence that it has been, and continues to be, difficult to attract and retain reliable, skilled employees to remote or rural areas of WA. This was further acknowledged in the RCB certification obtained by the applicant. The Tribunal further notes that the Skills Priority List (latest edition 2022) published by the Australian government’s National Skills Commission lists Retail Managers (General) as being in national shortage, including in WA, with moderate future demand.
Given these findings, the Tribunal is satisfied that there is a genuine need for the nominee to be employed as a paid employee in the position under the applicant’s direct control, and that the position cannot be filled by a locally resident Australian citizen or permanent resident. The Tribunal therefore finds that r.5.19(4)(h)(ii)(B) and (C) are met.
Accordingly, the Tribunal finds that the requirements of reg 5.19(4)(h) as a whole 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.
Alison Mercer
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 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).

[2023] AATA 1212

28 April 2023

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Immigration

Administrative Law

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Judicial Review

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