Sunny Mann PTY LTD (Migration)

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 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 Accountabilities
Financial Responsibilities
·Manage and track the following elements:
·Store Sales
·Net Profit
·Overall Store Business
People 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 required
Business 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 guidelines
Retail 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 Manager
Occupational 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 process
Customer 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 complaints
Key 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 times
12)   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.
Documents including the following were provided following the review application:
1)     Notice of Decision, refusal of nomination application dated 15 January 2018.
2)     Invitation from the Tribunal to provide information dated 3 July 2020.
3)     Request for extension of time dated 14 July 2020.
4)     Extension granted to 14 August 2020.
5)     ASIC extract for the applicant.
6)     ABN lookup for 50 600 659 167.
7)     BAS 2017; 2018; 2019; 2020.
8)     Emails between the nominee and suppliers regarding vegetables; invoices and chicken dated March 2020.
9)     Email from the nominee to the director dated July 2020 stating the budget for 2020–2021 is attached and ‘let me know your thoughts’.
10)   Company tax returns 2018 and 2019.
11)   Financial statements for 2019.
12)   Emails from the nominee to third parties regarding deliveries and catering dated 2019.
13)   Warning letter to an employee.
14)   Handwritten note from a police officer, Mr T, stating that the nominee is managing the Subway store.
15)   Template letters signed and filled out by other individuals stating the nominee ‘is managing the store and we are regular customers’.
16)   Letter of engagement dated 1 July 2015 and signed by both the applicant and nominee.
17)   Exchange of emails with nominee from Knox school regarding Subway order dated 2019.
18)   Job description – Retail Manager submitted 14 August 2020:[
The duties of the nominated position include but are not limited to:
a)Oversee the day-to-day operations of the store.
b)Manage stock levels and make key decisions about the stock levels
c)Achieve financial objectives by preparing annual budgets, expenses, analyse variances and initiate corrective actions
d)Complete operational requirements by rostering employees and follow-up on work results
e)Hire, train and if necessary, performance manage employees
f)Deal with staffing issues, conduct performance appraisals, etc
g)Maintain high levels of Customer satisfaction, high levels of engagement and liaison with the local community, schools and businesses
h)Ensure Subway and local government standards for food safety, staff safety, WH&S and quality are maintained.
i)Formulate pricing policies, review merchandise, determine need for additional promotional material and authorise clearance sales.
j)Ensure store fixtures and equipment are clean and maintained regularly
k)Ensure products are displayed appropriately for customers
l)Have full authority on day-to-day operational decisions and operate the store in strict accordance with the Subway store global operating standards.
m)Have authority to interact with the Subway head-office staff during their periodic monthly, quarterly and annual visits.
1)     RCB assessment and Form 1404.
2)     Letter from Lithgow police and Thales Pty Ltd dated March 2020 thanking the nominee for the catering services.
3)     Photos of customers and the nominee in the store.
4)     Documents titled “Select the Physical Count you wish to view or edit” with the nominee’s name and a variety of dates. The nature of this document is not clear.
5)     Organisation chart showing the director, nominated position and seven sandwich artists (casual staff).
Documents including the following were provided after the hearing:
1) Submission dated 14 October 2020.
2) Department of Home Affairs approval of nominated position of Retail Manager dated 6 September 2019.
Adjournments and extension of time
The applicant requested an extension of time to provide evidence which was duly granted.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Tasks of the position, genuine need for the position and training requirements r.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 a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, 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 applicant can choose to meet r.5.19(4)(h)(i) or (ii) and has chosen to meet the latter.
The Tribunal must now consider whether the tasks to be performed in the position correspond to the tasks of a Retail Manager, ANZSCO 142111, found in the instrument and as described below in the ANZSCO listed on the Australian Bureau of Statistics (ABS) website. This is necessary to satisfy r.5.19(4)(h)(ii)(D), which provides as follows:
(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;
The Tribunal is mindful that ANZSCO is not prescriptive, however, the Tribunal is also aware of the need for qualitative analysis as stated by Judge Smith in Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 at [30]. His Honour was referring to r.2.72(10)(f) of the Regulations; nonetheless the statement is applicable to the Tribunal’s decision-making regarding r.5.19(4)(h)(ii)(D):
what is required … is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another…
The ANZSCO list of tasks for Retail Manager ANZSCO 142111 are as follows:
Organises and controls the operations of a retail-trading establishment.
a)    Determining product mix, stock levels and service standards.
b)    Formulating and implementing purchasing and marketing policies and setting prices.
c)     Promoting and advertising the establishment’s goods and services.
d)    Selling goods and services to customers and advising them on product use.
e)    Maintaining records of stock levels and financial transactions.
f)   Undertaking budgeting for the establishment.
g)    Controlling selection, training and supervision of staff.
h)    Ensuring compliance with occupational health and safety regulations.
The applicant has submitted a number of job descriptions and it is reasonable to consider the latest description[1] that was submitted on 14 August 2020 following the review application as the one that the applicant is relying upon.
[1] 35) Job description – Retail Manager.
There was a discussion in the hearing of the tasks; the terms of the franchise agreement and the nominated position’s tasks and whether they corresponded with the ANZSCO tasks and finally the Tribunal advised the applicant under s.359AA that its analysis of the franchise agreement may cause it to consider that the franchisor has responsibility for many of the higher tasks of the ANZSCO and if it has regard to this it may find that the applicant does not meet r.5.19(4)(h)(ii)(D).The Tribunal stressed that it had not reached a decision on the case.
The director in the hearing advised that he considered the nominated position undertook the tasks of the ANZSCO Retail Manager and that his employee was a retail manager.
The migration agent responded that he has handled many applicants who are franchisees and the Tribunal was not considering the difference between the macro and micro roles of the nominated position. This argument was not entirely clear to the Tribunal as there is no mention in the ANZSCO of micro or macro tasks. The Tribunal gave the applicant a further 14 days to respond to the concerns.
In the written submission the agent maintained that the Tribunal only had concerns over the first two ANZSCO tasks namely:
1) Determining product mix, stock levels and service standards.
2) Formulating and implementing purchasing and marketing policies and setting prices.
The Tribunal’s concerns were expressed about the broad range of responsibilities and tasks undertaken by the franchisor which were listed as tasks of the ANZSCO, so this interpretation of the Tribunal’s concerns is not accurate.
Assessing the nominated tasks against the ANZSCO tasks

In undertaking a qualitative analysis of the tasks of the nominated position, the Tribunal is not simply accepting the tasks as given in the job description but determining from the evidence whether these tasks are undertaken fully, partially or not at all.
The Tribunal has allocated a weighting to each ANZSCO task such that if it is undertaken fully by the nominated position such that the task of the nominated position corresponds to the ANZSCO task then a weighting of 1.00 is given and if it is only partially undertaken then a pro rata weighting is given and if it is not undertaken at all then a weighting of 0.00 is given signifying that the task of the nominated position does not correspond to the task of the ANZSCO position.
The tasks from the latest job description dated 14 August 2020 as below will be considered against the ANZSCO tasks for Retail Manager. The Tribunal notes that the first task, ‘oversee the day-to-day operations of the store’, is so generic as to be open to interpretation:
The duties of the nominated position include but are not limited to:
a)    Oversee the day-to-day operations of the store.
b)    Manage stock levels and make key decisions about the stock levels
c)     Achieve financial objectives by preparing annual budgets, expenses, analyse variances and initiate corrective actions
d)    Complete operational requirements by rostering employees and follow-up on work results
e)    Hire, train and if necessary, performance manage employees
f)   Deal with staffing issues, conduct performance appraisals, etc
g)    Maintain high levels of Customer satisfaction, high levels of engagement and liaison with the local community, schools and businesses
h)    Ensure Subway and local government standards for food safety, staff safety, WH&S and quality are maintained.
i)   Formulate pricing policies, review merchandise, determine need for additional promotional material and authorise clearance sales.
j)   Ensure store fixtures and equipment are clean and maintained regularly
k)     Ensure products are displayed appropriately for customers
l)   Have full authority on day-to-day operational decisions and operate the store in strict accordance with the Subway store global operating standards.
m)   Have authority to interact with the Subway head-office staff during their periodic monthly, quarterly and annual visits.
Task 1 of the ANZSCO
Task 1 of the ANZSCO contains three sub-tasks as follows: 1) Determining product mix; 2) Determining stock levels; and 3) Determining service standards. The Tribunal finds that the following tasks from the job description are intended to align with this ANZSCO task, namely:
a) Oversee the day-to-day operations of the store.
b) Manage stock levels and make key decisions about the stock levels
The agent in his 14 October 2020 submission puts forward the view that the Tribunal has taken a narrow construction of this task and it should be given a broader construction namely that the nominee does not have to seek permission from his immediate boss, the director, rather than from the franchisor. This was in response to the Tribunal’s concern that the Agreement states:
Agreement Page 6 - (ii) "You will not conduct any business or sell any products at the Restaurant other than the business and products we approve for the location'.
The agent states that Subway, the franchisor, does not dictate the product mix for each individual store but rather that each store is able to choose from product lines, each of which consists of several related products. Those product lines are sandwiches, wraps, beverages, desserts and salads and the individual store can choose the specific product line and therefore the products at two Subway stores can be different. He goes on to argue that since it is the nominated position that chooses the combination of sandwiches, wraps, beverages, desserts and salads to sell in the store independent of the director, he is determining the product mix. He also states that the nominee choses which drinks from a range of 40 drinks he will sell and that Subway melt, Subway club and chicken parmigiana are no longer part of Subway’s current national product mix but they are sold in the applicant’s store. He states that this points to the independent decision-making capacity of the nominee as far as determining product mix is concerned.
This is the same argument that the director gave in the hearing that the nominated position can choose the product to sell from the Subway range.
The Tribunal notes that none of the tasks in the latest job description go to ‘determining product mix’ but will set this observation aside and consider the argument the agent and director have put forward. The argument is disingenuous because if there were no product mix determined by the franchisor there would be no product lines from which the nominated position could choose. It may be that there are lines such as Subway melt, Subway club and chicken parmigiana which are no longer part of the national product line but it is noted that two of them include the name, ‘Subway’ signifying that they are products determined by the franchisor. It is also the case that these are just three items and would be a small proportion of products sold in the store whose overwhelming product mix would be determined by the franchisor as per the Agreement, item 6(ii).
The Tribunal finds that the nominated position tasks do not align with the sub-task ‘determining the product mix’.
The Tribunal finds that the nominated position tasks do align with the second sub-task ‘determining stock levels’.
The Tribunal has considered whether the final of the three sub-tasks in ANZSCO task 1, namely ‘determining service standards’, aligns with the job description and finds that h) and l) are intended to correspond. It is noted that the ANZSCO task is not to maintain or operate in strict accordance with ‘service standard’. It is rather a higher level of responsibility in that the task is ‘determining’ the ‘service standards’. This is consistent with the director’s evidence at hearing which confirmed that the nominated position ensures that the staff comply with the service standards but by inference the position does not determine the service standards:
h) Ensure Subway and local government standards for food safety, staff safety, WH&S and quality are maintained.
l) Have full authority on day-to-day operational decisions and operate the store in strict accordance with the Subway store global operating standards.
The agent’s submission responds to the Tribunal concerns over the Agreement, item 6(ii) which states:
Operations Manual which contains mandatory and suggested specifications, standards and operating procedures…you will adhere to quality control standards
The agent advised that the director of the business informs that the mandatory standards refers to the Australian Food Authority Standards which every food business must follow not just the franchise in question. He states that the other standards in the agreement are “suggested” and that this word connotes discretion and it follows that they are not mandatory to be followed by the nominated position. The Tribunal does not accept this as there is an Operations Manual and the requirement that the store ‘adhere to quality control standards’.
It is further noted that the nominated position is required by l) in the job description to operate the store in strict accordance with the Subway store global operating standards. It is evident that there are global standards that apply to all stores and the nominated position must comply with these.
Taken together the Tribunal considers that the franchisor ‘determines the service standards’.
Since one of the three sub-tasks of ANZSCO task 1 are undertaken by the nominated position, the Tribunal gives it a weighting of 0.33.
Task 2 of the ANZSCO
Task 2 of the ANZSCO is ‘Formulating and implementing purchasing and marketing policies and setting prices’ and has five sub-tasks, namely: ‘formulating purchasing policies’; ‘implementing purchasing policies’; ‘formulating marketing policies’; ‘implementing marketing policies’; and ‘setting prices.’
The Tribunal finds that the following tasks of the nominated position partially align with this ANZSCO task, namely:
i) Formulate pricing policies, review merchandise, determine need for additional promotional material and authorise clearance sales.
The director in the hearing stated that they have recommended prices, but they can charge a different price because there are different prices between regional and city. Subway gives them a guide, but they can vary this price. The Tribunal accepts with some reticence that the nominated position has responsibility for ‘setting prices’ as it is unlikely that a major franchise would allow their franchisees free rein with price setting however it accepts the applicant’s evidence at hearing.
The Tribunal had concerns about the choice of vendors, as noted in the Agreement at item 5(ii):
5(ii) may be required to purchase all food, equipment and other products and services typically used in Subway restaurant exclusively from an approved distribution centre or other approved source.
The agent submits that ‘may be’ denotes discretion and that the nominated position can determine vendors on a day-to-day basis. However, there is scant evidence that the nominated position exercises this alleged independence in choosing suppliers and it is implausible that a franchisee would avail themselves of the purchasing power of a well-respected franchise and then seek their own suppliers for the great majority of product that is sold through the store. The Tribunal does not accept that the position is ‘formulating purchasing policies’ and ‘implementing purchasing policies’.
The Tribunal needs to consider if the position is ‘formulating marketing policies’ and ‘implementing marketing policies’. The director in the hearing stated that they promote the business to local big businesses and they are loyal customers. The Tribunal notes that they have loyal customers as evidenced by the letters of support, however, there is scant evidence that this is due to the local marketing policies of the nominated position and it is more likely that it is due to the overall marketing and advertising budget of the franchisor. This finding is based on the agreement as below which refers to the Subway Franchising Advertising Fund of Australia Pty Ltd. The owner also stated that if they put a sign on local buses or a sign on a street then they have to pay for that personally but, again, there is scant evidence that they initiate any local marketing policies such as street or bus signs.
The Tribunal has considered the Agreement as below:
Recitals D. We will grant you access to the System. n. "You acknowledge the System includes confidential and proprietary information, including but not limited to customer lists, vendor lists, products, recipes, formulas, specifications, food preparation procedures, devices, techniques, plans, business methods and strategies, organisational structure, financial information, marketing and development plans and strategies, advertising programmes, creative materials, medica schedules, business forms, drawings, blueprints, reproductions, data, trade dress, franchise agreements, business information related to franchisees, pricing policies.."
Page 8 i. You will pay us (redacted) of gross sales of the Restaurant plus GST. We will deposit that money into the Subway Franchisee Advertising Fund of Australia Pty Ltd…these advertising contributions be placed into a fund to be spent on advertising and related expenses for the benefit of franchisees. (Emphasis added).
Based on the Agreement and analysis above which plainly shows that the franchisor is ‘formulating marketing policies’ and ‘implementing marketing policies’ the Tribunal finds that this task is not undertaken by the nominated position.
Since one of the five sub-tasks of ANZSCO task 2 are undertaken by the nominated position, the Tribunal gives it a weighting of 0.20.
Task 3 of the ANZSCO
Task 3 of the ANZSCO is ‘Promoting and advertising the establishment’s goods and services’ and comprises two sub-tasks, namely ‘promoting the establishment’s goods and services’ and ‘advertising the establishment’s goods and services’.
The Tribunal finds that the following tasks of the nominated position are intended to align with this ANZSCO task, namely:
i) Formulate pricing policies, review merchandise, determine need for additional promotional material and authorise clearance sales.
As discussed above, the Tribunal can find scant evidence of additional promotional material produced by the nominated position and the Agreement as below plainly shows that it is the franchisor that promotes and advertises the store’s goods:
Recitals D. We will grant you access to the System. n. "You acknowledge the System includes confidential and proprietary information, including but not limited to customer lists, vendor lists, products, recipes, formulas, specifications, food preparation procedures, devices, techniques, plans, business methods and strategies, organisational structure, financial information, marketing and development plans and strategies, advertising programmes, creative materials, medica schedules, business forms, drawings, blueprints, reproductions, data, trade dress, franchise agreements, business information related to franchisees, pricing policies.."
Page 8 i. You will pay us (redacted) of gross sales of the Restaurant plus GST. We will deposit that money into the Subway Franchisee Advertising Fund of Australia Pty Ltd…these advertising contributions be placed into a fund to be spent on advertising and related expenses for the benefit of franchisees. (Emphasis added).
Since none of the two sub-tasks of ANZSCO task 3 is undertaken by the nominated position, the Tribunal gives it a weighting of 0.00.
Task 4 of the ANZSCO
Task 4 of the ANZSCO is ‘Selling goods and services to customers and advising them on product use’ and comprises two sub-tasks, namely ‘selling goods and services to customers’ and ‘advising them on product use’. Plainly the second sub-task is not relevant to this case.
Although the job description does not specifically mention selling goods to the customers the Tribunal will give the applicant the benefit of the doubt and accept that the nominated position sells goods to customers. The Tribunal considers that the position’s tasks as below, correspond to task 4 of the ANZSCO:
a) Oversee the day-to-day operations of the store.
g) Maintain high levels of Customer satisfaction, high levels of engagement and liaison with the local community, schools and businesses.
k) Ensure products are displayed appropriately for customers
A weighting of 1.00 is given for this task. The applicant made submissions regarding this task; however, the Tribunal has found that the nominated position’s tasks correspond with the ANZSCO, therefore the submissions on this task are accepted by the Tribunal.
Task 5 of the ANZSCO
Task 5 of the ANZSCO is ‘Maintaining records of stock levels and financial transactions’ and this is made up of two sub-tasks: ‘maintaining records of stock levels’ and ‘maintaining records of financial transactions’.
The Tribunal considers that the position’s task as below is the only one that partially aligns with this task and would correspond with ‘maintaining records of stock levels’. There is scant mention in the job description of ‘maintaining records of financial transactions’.
b) Manage stock levels and make key decisions about the stock levels
Since one of the two sub-tasks of ANZSCO task 5 is undertaken by the nominated position, the Tribunal gives it a weighting of 0.50.
Task 6 of the ANZSCO
Task 6 of the ANZSCO is ‘Undertaking budgeting for the establishment’. It is noted that the applicant’s job description task that partially aligns with this task is the following:
c) Achieve financial objectives by preparing annual budgets, expenses, analyse variances and initiate corrective actions.
The Oxford Dictionary online definition is as follows: ‘undertaking’ is a ‘task that is taken on; an enterprise’ and ‘budgeting is an estimate of income and expenditure for a set period of time’.
The Tribunal considers that ‘undertaking budgeting for the establishment’ means that estimating the income and expenditure for a set period of time for the establishment must be undertaken by the position. It is noted that the definition is not adhering to, complying with, working within or similar definitions that would imply that the position is given a budget prepared by others and complies with that budget.
The Tribunal notes that the organisation chart shows the nominated position is responsible through the line of management to the director. It is implausible that with a layer of senior management over the nominated position that it would be solely responsible for preparing the budget for the store. The Tribunal notes the email[2] from the nominee stating that the budget is ready, and he wants the thoughts of the director on it. This indicates that the director has final oversight of the budget process and the nominated position is only partially responsible for the budget, as such the Tribunal gives a weighting of 0.50 to this task.
[2] Email from the nominee to the director dated July 2020 stating the 2020–2021 budget is attached and to ‘let me know your thoughts’.
Moreover, even if the Tribunal accepted that the nominated position undertook the budgeting and gave this task a weighting of 1.00, it would not change the fact that the other major tasks are not undertaken by the nominated position and as per the analysis below, the tasks of the nominated position would not correspond to the tasks of the ANZSCO position Retail Manager.
Task 7 of the ANZSCO
Task 7 of the ANZSCO is ‘Controlling selection, training and supervision of staff’ and comprises three sub-tasks: ‘controlling selection of staff’, ‘controlling training of staff’ and ‘supervision of staff’.
The Tribunal considers the nominated tasks that partially align with the ANZSCO task 7 are the following:
d) Complete operational requirements by rostering employees and follow-up on work results
e) Hire, train and if necessary, performance manage employees
f) Deal with staffing issues, conduct performance appraisals, etc
The Tribunal does accept that the nominated position is undertaking the ANZSCO task 7 sub-tasks. As such the Tribunal has given a weighting of 1.00 to this task.
Task 8 of the ANZSCO
Task 8 of the ANZSCO is ‘Ensuring compliance with occupational health and safety regulations’ and the following task for the position corresponds to this task: h) Ensure Subway and local government standards for food safety, staff safety, WH&S and quality are maintained.
As a result, the Tribunal gives a weighting of 1.00 to this task.
The applicant made submissions regarding this task; however, the Tribunal has found that the existing position’s tasks correspond with the ANZSCO, therefore the submissions on this task are accepted.
Overarching responsibility
The remaining task to consider is the overarching responsibility of the ANZSCO Retail Manager, namely ‘Organises and controls the operations of a retail-trading establishment’. The Tribunal accepts this is the overall responsibility of the ANZSCO position but believes because it is listed in the ANZSCO it must be considered. Implicit in this overarching responsibility is that the position’s tasks correspond to the eight tasks listed in the ANZSCO. It would be unreasonable to find that a significant proportion of the nominated position’s tasks, particularly the higher level tasks, do not correspond to the ANZSCO but that the position fulfils the overarching responsibility of a retail manager who ‘organises and controls the operations of a retail-trading establishment’.
The Tribunal found that the higher level tasks which carry more responsibility and would be associated with managerial responsibility, namely: determining product mix; setting service standards; formulating and implementing marketing policies; promoting and advertising the establishment’s goods and services; undertaking full responsibility for budgeting for the establishment; and maintaining records of financial transactions do not or only partially correspond. The Tribunal therefore finds that the nominated position does not have overarching responsibility for and does not ‘organise and control the operations of a retail-trading establishment’. The Tribunal has considered task a) in the job description, namely ‘Oversee the day-to-day operations of the store’, but considers that since the higher level ANZSCO tasks are not undertaken by the nominated position that this task does not correspond to the ANZSCO tasks. It is noted that the day-to-day operations are not defined but it can be inferred that they comprise the tasks in the job description and as such these have already been analysed by the Tribunal. As such, the Tribunal gives this overall responsibility a weighting of 0.00.

The Tribunal will now return to the tasks of the position that correspond to the tasks of an ANZSCO 142111 Retail Manager. The table below shows the weighting given to each task by the Tribunal:

Tasks of Retail Manager ANZSCO 142111

Weighting

Overarching responsibility 0.00

Task 1 0.33

Task 2 0.20

Task 3 0.00

Task 4 1.00

Task 5 0.50

Task 6 0.50

Task 7 1.00

Task 8 1.00

9 Tasks in total 4.53

% of tasks that correspond to 9 ANZSCO tasks 50%

The Tribunal finds that of the tasks to be performed in the nominated position, only 4.53 or 50% of the tasks correspond with the nine tasks of the ANZSCO 142111 position of Retail Manager.
The Oxford Dictionary online provides the following definition of ‘correspond’: ‘Have a close similarity; match or agree almost exactly.’ A 50% alignment would not reasonably be said to be a ‘close similarity’ or to ‘match or agree almost exactly’.
The agent has put forward the argument that there are 16 duties and the nominee is performing 15 out of these tasks, however, the Tribunal has undertaken the careful analysis above and finds that only 50% of the tasks of the nominated position correspond to the ANZSCO tasks. The agent goes on to state that ‘over the years, the delegates have approved nomination for my clients which include but are not limited to Pizza Hut; Dominoes; Muffin Break and Subway’ and that a nomination for Retail Manager for a Subway franchise was approved in September 2019. It may be that the nomination was approved for a Subway franchise, although this is difficult to ascertain as much of the document is redacted, but nonetheless the Tribunal is bound to carefully assess and weigh the evidence and reach a decision independent of the Department which it has carefully set about undertaking in this case.
Even if the Tribunal were to accept that the nominated position undertakes budgeting for the establishment and gave that task a weighting of 1.00, it would mean that a total of 5.03 of the nominated position’s tasks correspond to the nine ANZSCO tasks of a Retail Manager because the overarching responsibility would still not be met as the majority of higher tasks would not be performed by the position, and it would find that 56% of the tasks align. A 56% alignment would not reasonably be said to be a ‘close similarity’ or to ‘match or agree almost exactly’ so the tasks of the nominates position would still not correspond to the tasks of the ANZSCO Retail Manager and it would not materially affect the decision of the Tribunal.
Therefore, the tasks to be performed in the nominated position do not correspond to the tasks of the occupation Retail Manager, ANZSCO 142111, specified by the Minister in writing. Therefore r.5.19(4)(h)(ii)(D) and r.5.19(4)(h)(ii) are not met.
Accordingly, the requirements of r.5.19(4)(h) are not met.
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 Kelly
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).

[2020] AATA 5456

29 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Tasks of Retail Manager ANZSCO 142111	Weighting
Overarching responsibility	0.00
Task 1	0.33
Task 2	0.20
Task 3	0.00
Task 4	1.00
Task 5	0.50
Task 6	0.50
Task 7	1.00
Task 8	1.00
9 Tasks in total	4.53
% of tasks that correspond to 9 ANZSCO tasks	50%