Sunny Mann PTY LTD (Migration) - [2020] AATA 5456

Sunny Mann PTY LTD (Migration) [2020] AATA 5456 (29 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sunny Mann PTY LTD
CASE NUMBER:  1802422
HOME AFFAIRS REFERENCE(S):          BCC2016/2486862
MEMBER:De-Anne Kelly
DATE:29 October 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 29 October 2020 at 12:29pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager (General) – tasks of nominated position to correspond with ANZSCO description – Subway sandwich franchise – terms of the franchise agreement – franchisor has responsibility for many of the higher tasks of the ANZSCO – determining the product mix – determining service standards – formulating and implementing marketing policies – promoting and advertising the establishment’s goods and services – maintaining records of financial transactions – overarching responsibility – 50% alignment to ANZSCO tasks – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091
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 15 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).
The applicant applied for approval on 27 July 2016. 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).
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 r.5.19(4)(h)(ii)(D) and (i) of the Regulations because the evidence failed to demonstrate that the bulk of the tasks of the nominated position correspond to those of ANZSCO skills level 2 Retail Manager (General) and fail to fall within the ANZSCO skill Level 1–3 and the nominated tasks do not correspond to the tasks of an occupation specified by the Minister.
The applicant appeared before the Tribunal on 1 October 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent, Mr Gagangjot Singh Bhatia MARN: 0963188 of Ace Migration of Parramatta NSW 2150.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sunny Mann PTY LTD (Migration)

Details

AGLC: Sunny Mann PTY LTD (Migration) [2020] AATA 5456
Case: [2020] AATA 5456
Decision Date: 29 October 2020

CaseChat Overview and Summary

This matter concerned an appeal by Sunny Mann Pty Ltd against a decision to refuse the nomination of a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The company operates a Subway sandwich franchise in Lithgow, NSW, and sought to nominate Mr Simranjeet Singh for the role of Store Manager, described as an ANZSCO Retail Manager. The director, Mr Sunny Mann, stated he needed to transition to full-time work in the construction industry and could no longer manage the franchise, which was located 120 km from his Sydney residence.

The primary legal issue before the Tribunal was whether the nominated position of Store Manager met the requirements for approval under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the tasks of the nominated position corresponded with the ANZSCO description for a Retail Manager and if the franchisor's responsibilities, as outlined in the franchise agreement, aligned sufficiently with the overarching duties of such a role. The Tribunal also considered the genuine need for the position and whether the applicant had met the criteria for the Direct Entry nomination stream.

The Tribunal's reasoning focused on the terms of the franchise agreement between Sunny Mann Pty Ltd and Subway Systems Australia Pty Ltd. It found that many of the higher-level tasks typically associated with a Retail Manager, such as determining product mix, setting service standards, formulating marketing policies, and maintaining financial records, were retained by the franchisor. Consequently, the Tribunal concluded that the tasks of the nominated position did not sufficiently correspond to the ANZSCO description for a Retail Manager, with an alignment of only approximately 50%. The Tribunal also noted that the applicant had not sought to satisfy the criteria for the Temporary Residence Transition nomination stream.

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in 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. The company commenced operation in 2014 and operates a Subway sandwich franchise from Lithgow NSW. On 27 July 2016, Sunny Mann Pty Ltd ABN: 50 600 659 167, trading as Subway Lithgow lodged a Regional Sponsored Migration Scheme – Subclass 187 visa in the Direct Entry stream for the position of Store Manager, ANZSCO Retail Manager on $56,000 per annum in favour of Mr Simranjeet Singh. The company was represented by the director Mr Sunny Mann. The director advised that he had been working in the business but had now taken on a construction course and needed to work full time in that position as he required supervision under a licenced builder. He plans to start his own construction company and needs someone full time to manage the Subway franchise. He cannot do two jobs at once. He also lives in Sydney and the store in Lithgow is 120 km away and he cannot work in the business and needs someone to work there full time. The director gave an overview of his business. They employ up to eight people and made a profit of $35,000 in 2019 including director fees. The business did suffer a downturn at the end of March 2020 but last month traded very well. It was down for two to three months. He has a genuine need for the position as he is not aware of what is happening in the business and he is getting work in the area of construction and needs someone to manage the Subway. Documents including the following were provided with the application:1) Apprenticeship training contract.2) Acknowledgement of employer nomination dated 27 July 2016.3) BAS 2015 and 2017.4) ASIC extract dated 2016.5) Organisation chart showing the director, nominated position and eight casual staff.6) Letter of engagement dated July 2015.7) Financial statements dated 2015.8) Letter from the accountants dated 30 May 2015 regarding the need for the nominated position.9) Franchise agreement dated 16 December 2014 between Subway Systems Australia Pty Ltd and the director, Mr Sunny Mann. Referred to as the Agreement.10) Market salary analysis.11) Store manager description:Role Overview submitted with the original application on 2 November 2016.A Store Manager optimises the operating profit of their site and ensures their store builds a reputation for providing excellent customer service. A Store Manager grows retail shop sales in all categories and implements ‘best practice’ of each component of the retail offer. This position ensures competent, capable employees are recognized and developed through ongoing training.Key AccountabilitiesFinancial Responsibilities·Manage and track the following elements:·Store Sales·Net Profit·Overall Store BusinessPeople Management·Recruit and select new employees·Overall management and responsibility of Sandwich Artist™, Shift Managers, Assistant Managers·Ensure that new employees are trained and inducted in accordance with Subway training requirements·Provide ongoing coaching of employees and lead expectations by example·Prepare the rosters in line with budgeted labour and man hours·Run employee counselling sessions and Investigation Meetings. Inform Operations Manager of escalated employee issues.·Perform employee appraisals once every quarter·Mentor Assistant Managers as requiredBusiness Acumen·Develop and monitor store labour budgets and man hours·Invoicing, ordering and daily banking·Prepare required paperwork in relation to stock and sales. Prepare employee pay and timesheets·Manage cash variances and wastage.·Ensure 100% compliance in accordance to SUBWAY® and council guidelinesRetail Acumen·Perform inventory management and stock control including weekly stock take and reports.·Analyze the Weekly Sales & Inventory Report to improve the business.·Direct and undertake housekeeping activities such as maintaining store cleanliness and presentation.·Create and implement Local Store Marketing Plan.·Complete all required courses as directed by Operations ManagerOccupational Health & Safety·Ensure safety procedures are followed to prevent injury·Provide a safe work environment for employees and customers·Ensure all accidents are reported as per company processCustomer Services·Promote & encourage a high level of customer service amongst employees·Provide a high standard of customer service in dealing with sales, inquiries and complaints·Handle unresolved and/or escalated customer complaintsKey Challenges·Maintain high personal standards in both presentation and work habits·Manage point of sale and customer complaints·Sales growth, financial management and analytical judgment·Strategic thinking with planning and alignment·Inventory management·Collaborate and negotiate with others·Compliance and process focused·Maintain store cleanliness and hygiene at all times12) Online application dated 27 July 2016.13) Advertisement placed on Indeed.com stating:You will be responsible for:Managing a team in a high volume and fast paced environment.Leading by example to achieve KPIS and sales consistently.Performance management to grow and progress your team!Delivering an outstanding standard for customer service at all times.Encouraging strong company culture and values.Demonstrating the ability to coach and inspire a team to deliver results.14) Company tax return 2015.15) Financial statements dated 2015.16) Letter from the employer.

Decision

Reasons for decision

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 the 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 The Tribunal affirms the decision under review to refuse the nomination.De-Anne KellyMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.De-Anne KellyMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).