SNJ International Pty Ltd (Migration)

[2020] AATA 4043

SNJ International Pty Ltd (Migration) [2020] AATA 4043 (23 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SNJ International Pty Ltd

CASE NUMBER:  1801046

HOME AFFAIRS REFERENCE(S):          BCC2017/193156

MEMBER:Glenn O'Brien

DATE:23 September 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 23 September 2020 at 5:26pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – need for and tasks of position – nominee wife of director – no genuine attempt to recruit citizen or permanent resident – tasks more supervisory than managerial – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)

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 Home Affairs on 4 January 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 15 January 2017. 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 was not satisfied the tasks to be performed by the nominee in the nominated position correspond to the tasks of the occupation of Retail Manager (General).

5. The applicant appeared before the Tribunal on 11 June 2020 by telephone to give evidence and present arguments. The nominee also attended the hearing via telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing by telephone.  The applicant submitted a large number of written submissions prior to the hearing.  Following the hearing the applicant, through its registered migration agent submitted an employment contract and made further submissions that have been considered in making the Tribunal’s decision.  The applicant also directed the Tribunal to a number of other decisions of the Tribunal.  The Tribunal has considered all the written submissions and documents provided to the Tribunal in determining the application for review.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)

9. 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, 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, 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 th position.

10. The nominated position is located within regional Australia and a Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).

11. The nominated position of Retail Manager (General) is in the Unit Group 1421 ‘Retail Managers’.  The ANZSCO sets out indicative skill level and task for the position as follows:

    UNIT GROUP 1421 RETAIL MANAGERS

    RETAIL MANAGERS organise and control operations of establishments which provide retail services.

    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 Associate Degree, Advanced Diploma or Diploma (ANZCO 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.

    Registration or licencing may be required.

    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 and safety regulations

12. The applicant operates a retail business selling telephone cases, accessories and repairing mobile devices since 2015 in various locations.  Mr Seo the sole director of the applicant told the Tribunal that the business experienced a dip in turnover in May and April of 2020 due to the impacts of Covid-19 but since June 2020 the business has returned to normality.  The applicant business employees 14 staff two of which are Australian citizens.

13. Mr Seo told the Tribunal his wife is the nominee.  The applicant advertised the position on Seek.com and received between 35 and 40 applications.  Mr Seo told the Tribunal he advertised for the position of retail manager as he was intending to expand the business but none of the applicants were quite suitable or adequate for the standard and direction of the company at that time.  When asked what those standards were Mr Seo told the Tribunal that the position required a degree and one year of experience. 

14. On further questioning Mr Seo told the Tribunal that the position also required an understanding of business cases and good customer service. Mr Seo then indicated the nominee had a Diploma in Business.  Notably, in written submissions the applicant indicated the nominee holds a Diploma of Management.  The Tribunal accepts for the purposes of the review that Mr Seo’s reference to degree also meant a diploma.  When asked whether or not any of applicants had a degree Mr Seo indicated he could not recall. 

15. Mr Seo’s evidence in relation to the required standards and qualifications for the position appears to have be developed during the course of the hearing.  The applicant provided a letter to the Tribunal signed by Mr Seo dated 26 June 2017 which indicates that the applicant’s ineligibility was because:

    ·Some of the applications did not reside in the local area of the position

    ·Some of the applicants held no previous experience in the role or a similar role

    ·Some of the applicants had no related qualification

16. These reasons are not consistent with the applicant’s evidence at the hearing that none of the applicants had relevant experience.  While the letter dated 26 June 2017 refers to a marketing specialist position it refers to the same 35 applications.  The letter confirms the only successful candidate was the nominee.   Further, the advertisement on seek.com listed on 20 December 2016 provided to the Tribunal by the applicant did not list any specific qualification or experience in relation to the advertised position.

17. In post hearing submissions the applicant’s registered migration agent referred to a number of authorities. The Tribunal has considered those matters but makes its decision on the basis of the evidence before the Tribunal in the review which leads the Tribunal to determine the review on its own merits.

18. The Tribunal also considered the further factors set out in the post hearing submissions as to why the candidates were not accepted.  Notably, those additional reasons were not set out in Mr Seo’s letter dated 26 June 2017 or in his evidence to the Tribunal.  While the Tribunal accepts the proposition that the Tribunal should consider whether the applicant could fill the position on the basis of the need at the time, the contemporaneous evidence as to why the applicants were not suitable is inconsistent with the submissions made by the applicant after the hearing and the Tribunal does not accept those submissions as accurately reflecting the applicant’s reasons as to why the 35 applicants were ineligible at the relevant time.

19. While there is no restriction on the applicant from nominating persons with a direct personal relationship with the sole director of the nominator, the Tribunal does not consider the recruitment process undertaken by the applicant to be a genuine attempt to fill the position with an Australian citizen or permanent resident.  The Tribunal finds that the recruitment process was undertaken to evidence attempts to fill the position without a genuine assessment of the available candidates other than the nominee.

20. The Tribunal also considered the tasks of the nominee against those tasks set out in ANZSCO. 

21. Notably in reviewing the job description and Meeting Minutes and Agenda provided by the applicant there were various indicators that the role undertaken by the nominee was substantially supervisory rather than managerial. In particular the evidence indicated to the Tribunal that the director was intimately involved in the day to day management of the business and made the decisions in relation to ordering, stock mix, budgeting, pricing, and marketing.  By way of example:

    a.The Meeting Minutes dated 3 July 2017 indicated the nominee selected the final range of Galaxy 8 cases and reported to the Director.  The Director then approved a list as set out in the Minutes.

    b.In the Meeting Minutes dated 1 June 2017 the nominee “strongly suggested” strategies to improve Mackay sales.  The Minutes note the director approved the following:

    ·Re-pricing …

    ·Add shock proof cases …

    ·Advertsing with flyers.

    c.In the Meeting Minutes dated 1 October 2018 the nominee suggested to the Director to order cases for I-phones first for budget reasons.  Director agreed and delegated to nominee to proceed to order.

    d.In the Meeting Minutes dated 1 January 2019 the nominee suggested a mid-year sale due to slow sales around that time of year and the director approved a 20% off sale promotion in that month for all kiosks.

22. Mr Seo told the Tribunal the Retail Manager was responsible for selecting products and stock levels and updating SNJ policy but then told the Tribunal he approved them. 

23. In response to the Tribunal’s concern that the position was supervisory rather than managerial and that Mr Seo approves the recommendations of the nominee Mr Seo told the Tribunal “I’m the boss.  I’m the owner making decisions for the business in general.”

24. Mr Seo also indicated he trained the staff in relation to mobile phone repair.  While the Tribunal accepts the applicant has other commitments in relation to other stores and the overall direction, development, and expansion of the business based on the applicant’s evidence it was clear to the Tribunal Mr Seo considered himself solely responsible for the decisions of the business.  It is not the case that the nominee’s tasks must be identical to those tasks set out in the ANZSCO description or that the nominee must undertake all those tasks.  On reviewing the submissions including marketing materials, customer complaints, competitor analysis, financial documents, service standards, inventory checklists, and employee interview checklists the Tribunal accepts the nominee is involved in the day-to-day operations of the store and has involvement to varying degrees in the tasks as set out in ANZSCO.  However, the weight of evidence indicates that the nominee was subject to director approval in relation to most tasks and did not exercise managerial responsibility to a level commensurate with the specified occupation.  The Tribunal finds the role of the nominee is substantially more aligned with the tasks of a retail supervisor.

25. Based on the evidence provided and having regard to the tasks of a Retail Manager (General) as set out in ANZSCO, the Tribunal is not satisfied that the tasks of the nominated position with the company correspond to the specified occupation of Retail Manager (General) ANZSCO 142111.

26. Accordingly, the requirements of r.5.19(4)(h) are not met.

27. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

28. The Tribunal affirms the decision under review to refuse the nomination.

    Glenn O'Brien
    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).