Sugran Pty Ltd (Migration)

[2019] AATA 985

Sugran Pty Ltd (Migration) [2019] AATA 985 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sugran Pty Ltd

CASE NUMBER:  1612497

DIBP REFERENCE(S):  BCC2015/3125271

MEMBER:Ian Berry

DATE:22 January 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 22 January 2019 at 10:17am

CATCHWORDS
MIGRATION – nomination refusal– Direct Entry Nomination stream – retail manager – genuine need for the nominator to employ a paid employee – genuine position – no evidence provided supporting the work undertaken by the nominee –decision under review affirmed

LEGISLATION
Migration Regulations 1994, r 5.19

STATEMENT OF DECISION AND REASONS

Application for Review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 July 2016 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 26 October 2015. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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 as the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the application did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. The applicant appeared before the Tribunal on 25 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s director Mr Tariq Naveed (“director”) and the nominee Mr Gurwinder Singh (“nominee”).

6. The applicant was represented by its registered migration agent. The applicant’s representative attended the Tribunal hearing.

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 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). This regulation is attached to this decision. For the nomination to be approved, all the elements of short r.5.19(4) must be met.

   Is there a genuine need for the position r.5.19(4)(h)?

9. The Employer’s nomination under Regional Sponsor’s Migration Scheme application states the ANZSCO code for the nominated position ‘retail manager (general)’ is 142111 with the occupation location being at Waterford postcode 4133 with the business being a Caltex franchised petrol station and convenience store.  It is within a regional location.

10. The applicant employs six employees. The manager is now occupied by the nominee who commenced employment in January 2017. There is one customer service assistant working full-time for 38 hours per week and four employees working 38 hours per week who are paid as casuals. The nominee says he works a 38-hour week.

11. Five employees are Australian citizens. At least one employee started with the previous franchisee has continued in the business. At the time of the nomination application, the mix was four Australian citizens and two overseas students with the director performing the role of manager before employing the nominee.[1] The Caltex service Station operates 24 hours a day and 7 days a week[2] . It is a franchised business, the assignment of the business happened on 12 February 2015.

    [1] D1, f. 233

    [2] Tribunal folio 208

12. In anticipation of the growth of the business after the assignment to the applicant, he contemplated the need for a manager and on 1 September 2015, on the evidence of the director, it placed an advertisement in Gumtree, which ran for about two to three weeks. The salient points in the advertisement were:

    ‘Waterford
    Manager required for busy service station. Award wages plus super.
    An experienced and qualified manager required for a busy store/service station in Waterford area 4133 QLD.’

13. The director gives his evidence that the applicant purchased the business on 12 February 2015. It included an assignment of the Caltex franchise agreement. Very shortly after its commencement, the business was closed for refurbishment in August 2015. The director, in his evidence, says the applicant, was given very little notice of this refurbishment which was to take about three months. What was to be a three-month closure, ended in being a closure for about 9 to 10 months.

14. The applicants timing was questioned as to why it did not continue to advertise for the retail managers position particularly in view of the time the business had been closed. The applicant’s director explained that he focused more on the business reopening than in finding the manager.

15. However, the Tribunal put to him that he did not undertake any advertising for the position from September 2015, which suggested that he might not have been serious about the position and therefore might suggest the position was not genuine. The advertisement produced five or six candidates of whom there was not one suitable for the position. An employee with the previous franchisee, still employed with the applicant, stated she was not interested in taking on greater responsibility than she had occupied previously in another position. The applicant did not produce any documentary evidence of the advertising process such as the applicants resumes, interview notes and reasons as to their unsuitability.

16. The Tribunal questioned the applicant’s director as to whether there was any advertising for the console operators as the applicant had its business closed for 9 to 10 months. He said most of the console operators who had been employed at the time of closure had returned to their previous positions. He did not advertise for console operators.

17. The applicant’s director stated he opened a restaurant, which was taking most of his time. He needed a manager to run the service station and convenience store. in the last submission by the applicant, in refers to the health of the applicant’s director  in his having a bad back and health issues.  There was not any evidence supporting these issues.

18. The Tribunal explained to the applicant’s director that the making of an application for the retail manager to be employed by the applicant, was not to employ a manager to fill the director’s ‘need’ but to fill a position of retail manager. That, the filling of the position of retail manager in the applicant’s organisation, is subject to there not being available any Australian or permanent resident workers willing and able to fill the position; that, the tasks to be undertaken in the position of retail manager (in his organisation) should be a significant number of the tasks set out in ANZSCO. The meaning and significance of ANZSCO was explained to the applicant at the commencement of the hearing.

19. The nominee was employed initially as a console operator and received instruction from the applicant’s director for a period before he took up the position of a manager. After receiving instruction from the director, he performs the following tasks:

    ·Ordering stock

    ·Console operation (mainly on weekends)

    ·Stock-taking

    ·Ordering fuel

    ·Cash banking (two or three times a week including Monday and Friday)

    ·Bookkeeping activities

    ·Staff rostering

    ·Reconciling invoices

    ·Receiving stock and signing for it, though this activity was not confined just to the manager

    ·Staff problems

    ·Fuel dips and readings

20. The applicant’s director says that the nominee (who corroborated this evidence) was employed at the same rate as the console operators. He received about $27 per hour a week, and for weekend work about $35 per hour.

21. The applicant did provide a list of the duties of the nominee. The Tribunal noted that it was in line with the tasks as set out in ANZSCO. That, evidence had not been provided supporting the work undertaken by the nominee. At the invitation of the tribunal, it was suggested to the applicant he provide evidence as support for each of the tasks set out in the manager’s position.

22. The applicant’s business is a franchised service station and convenience store where there is no discretion as to purchase or placement of stock in the convenience store. There is some discretion on pricing but otherwise the franchise agreement places items with the franchisee required to sell them. The applicant submitted to various documents supporting the applicant’s contention that the nominee is undertaking that role of a retail manager. The documents submitted consist of the following:

    ·Gross margin report with rebates

    ·Customer complaints register (three entries)

    ·Staff meeting dated 2 August 2017 with agenda: how to improve sales/shop sale

    ·Staff meeting dated 4 September 2017 (with the same agenda)

    ·Calendar entry four 17 August 2017 with the handwritten notes. Also included was that calendar entry for 18 August 2017 with handwritten notes.

    ·Weekly convenience retail newsletters for 28 September 2017, 21 September 2017 and 14 September 2017 from StarMart.

    ·Copies of promotional material including merchandising tips and POS instructions

    ·Specific examples of the retail manager (ANZSCO 142111) overview of tasks. Store X PI report dated 18 September 2017, 17 September 2017, 10 September 2017, 3 September 2017.

    ·Screen print out of a computer program (three pages)

    ·Site report for SIRA program dated 11 September 2017 (with accompanying pages).

    ·Site presentation checklist.

    ·Manager monthly booklet (August 2017).

    ·Various registers and forms completed including fuel spill register daily cleaning tank level reports.

23. ‘Retail managers’ organise and control the operations of establishments which provide retail services. ANZSCO states that most occupations in this unit group (1421 retail managers) have a level of skill commensurate with the qualifications and experience of AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2). The tasks set out in ANZSCO 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 advertising 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.

24. The Tribunal is not convinced the nominee undertakes a significant number of the above tasks, other than maintaining records of stock levels and financial transactions (in a limited sense) and also controlling selection, training and supervision of staff again, in a limited sense, as the staff numbers might range from three to five.

25. Not any evidence was provided concerning Occupational Health & Safety regulations compliance. Formulating and implementing purchasing and marketing policies and setting prices was not a part of a franchisee’s duties and therefore not completed by the manager. There was not any evidence of marketing policies, which the Tribunal understands was set by the franchisor. Again, promoting an advertising goods and services was mainly left to the role of the franchisor.

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.

28. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Ian Berry
    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

    (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).