Swanstar Nominees Pty Ltd (Migration)

Swanstar Nominees Pty Ltd (Migration) [2020] AATA 5457 (2 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Swanstar Nominees Pty Ltd
CASE NUMBER:  1800635
HOME AFFAIRS REFERENCE(S):          BCC2016/3167774
MEMBER:Nicola Findson
DATE:2 November 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 02 November 2020 at 6:59pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager (General) – tasks of nominated position to correspond with ANZSCO description – duties of position more closely aligned with retail supervisor – Licence agreement with McDonald’s Australia – business operates within confines of the franchise paradigm – oversee and balance product mix to avoid unnecessary waste – local promotions – high-level managerial duties – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 21 December 2017 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 23 September 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 applicant trades as McDonald’s Melville, O’Connor, Bicton, Beeliar Village and Spearwood in Western Australia. It has nominated the position of Retail Manager, in respect of its Melville store, for approval.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations. The delegate was not satisfied that the duties of the nominated position corresponded closely enough to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) occupational description for a Retail Manager. Instead, the delegate considered that the nominated occupation aligned more closely with an ANZSCO Skill Level 4 retail supervisory position. The delegate therefore found that the tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister in an instrument in writing and therefore did not meet r.5.19(4)(h)(ii)(D), and therefore r.5.19(4)(h) as a whole.
The applicant was represented in relation to the review by its registered migration agent.
On 30 January 2020, the Tribunal wrote to the applicant, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (4). The applicant responded and provided to the Tribunal extensive additional and updated evidence in support of the application, including but not limited to:
- ASIC and ABN records for the applicant’s registration as a company in Western Australia;
- Financial Reports for the years ended 30 June 2017, 2018 and 2019;
·Trust Tax Returns for the years ended 30 June 2017 and 2018;
- Business Activity Statements (BAS) for the period January 2018 to December 2019;
- Licence and Lease dated 6 October 2016 between McDonalds Australia Ltd and the applicant;
- Updated organisational structure chart;
- Position Description documentation, including McDonald’s Australia Limited documentation, relevant to the nominated position;
- Fast Food Industry Award 2010;
- McDonalds Management Pay and Conditions Guide;
- Updated Contract of Employment dated 1 February 2020 between the applicant and nominee;
- Business Operational Material, including monthly Manager Reports, Quarterly and Yearly Business Plans, statements of financial performance, staff rosters, maintenance schedules, food safety checklists, order summaries, and daily running sheets;
- Evidence of labour market testing; and
- Certification approval from the relevant Regional Certifying Body.
Comprehensive written submissions also accompanied the additional material. These submissions provide detailed information about the applicant’s operations as well as a focussed response to the concerns set out by the delegate in the decision record. The submissions address the difficulties the company experienced, and continues to experience, in finding a suitable person(s) from the local labour market, with relevant qualifications and experience, to perform the nominated role. It also sets out, in detail, the duties of the position performed by the nominee within the applicant company.
Mr Terrence Creasey, Owner and Director of the applicant, appeared before the Tribunal on 16 October 2020, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Brad Stannard, the General Manager of the applicant, as well as the nominated employee, Mr Harold Ebro. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving 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 application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal has had regard to the information of the Department’s file as to the nomination, and is satisfied that these requirements are met. The application for approval was made on the approved form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.
The identified occupation in the application is Retail Manager (General) (ANZSCO 142111).
At hearing, Mr Creasey gave oral evidence to the Tribunal (which is supported by documentary evidence provided) that the applicant currently operates five McDonald’s stores, and business turnover exceeds $30 million each year. He indicated that each restaurant is open 24/7, equating to 168 operational hours per week. He indicated that a total of 62 Full Time and 527 Casual and/or Part Time workers are currently employed by the applicant, which equates to about 150 staff members in each restaurant. Mr Creasey told the Tribunal that each of the restaurants are significant, multi-faceted, businesses – each offering dine-in table service and takeaway (including drive-through and delivery) services as well as a McCafe coffee shop.
The Tribunal was told that neither Mr Creasey or Mr Stannard are involved in the day to day operations of the restaurants. Rather, they take a “helicopter view” over the stores, with their time focused on the responsibilities of managing the long-term strategic direction and profitability of the entire applicant company. The Tribunal notes that the material before it indicates that the applicant is currently in negotiations to expand its business by entering into additional Licence agreements with McDonald’s Australia Limited in respect of two new locations. The Tribunal was also told that a significant amount of Mr Creasey’s time is spent working outside the business - on Committees for McDonald’s Australia as well as liaising with the CEO of McDonald’s Australia and New Zealand about global business matters - in order to benefit the applicant company as a whole.
The Tribunal was told that it is the Restaurant Manager – which role is accounted for in the McDonald’s Australia organisational structure chart provided to the Tribunal - that has devolved responsibility for driving the quality, systems, people and profit of the restaurant. In this particular case, the applicant has applied for the nominee to manage the operations of the Melville restaurant.
Mr Creasey gave detailed and persuasive evidence about the nature and scope of the business operations of the applicant company and it’s need to employ a paid employee to work in the nominated position of Retail Manager, under the nominator’s direct control.
The Tribunal is satisfied, on the basis of the oral and documentary evidence provided to it, that there is an identified need for the applicant to employ a paid employee (Mr Harold Ebro) to work in the nominated position, under its direct control. The tasks that the business needs the position to undertake are discussed in more detail below.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
Having considered the material before it, including the nominator’s financial statements and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Accordingly, the Tribunal finds that the position is not related to labour-hire and that the requirement in r.5.19(4)(c) is met.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
It is now well over two years since the delegate’s decision, and documents provided by the applicant show that the nominee has been employed by the applicant company as a Manager since that time. Further, the Tribunal has had regard to the terms and conditions of employment as set out in the contract of employment signed on 12 July 2016, and recently updated on 1 February 2020. The contract indicates that it is for full-time, ongoing permanent employment. There is no clause that excludes the possibility of an extension.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has had regard to the terms and conditions of employment as set out in the most recent employment contract (dated 1 February 2020) between the applicant and nominee. The contract provides for the nominee’s leave entitlements and indicates that the base salary will be $64,918 plus superannuation for a 38-hour week. The Tribunal is satisfied that the nominee’s terms and conditions of employment are in accordance with the Fast Food Industry Award 2010, and that the employment contract reflects current employment laws.
In addition, based on the written submissions and information provided, the Tribunal observes that the applicant employs other Restaurant Managers, and each of those Managers receive the same salary for the same work as the nominated person.
The Tribunal is accordingly satisfied that the terms and conditions applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws.
Accordingly the requirements of r.5.19(4)(g) are met.
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 and those relevant to this matter are as follows:
·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.
Location of the position and the business
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument.
The Tribunal has considered the current legislative instrument (IMMI18/037), however, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 8 March 2018[1]. The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059)[2].
[1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states: “(1) This instrument applies in relation to the following: (a) an application for approval of a nomination in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”
[2] See Schedule 4 of IMMI 18/037
When IMMI17/059 commenced on 17 November 2017, it did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated. The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applied to nomination applications made on or after 17 November 2017.
Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application. That legislative instrument is IMMI 16/045.
In this case, the position is located in Melville, Western Australia, 6156, and at the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 16/045. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident
Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account the evidence provided to the Tribunal regarding the nature and scope of the business and the explanation as to why there is a genuine need for a paid Retail Manager in the organisation.
The Tribunal accepts the evidence before it regarding the applicant’s efforts to find a suitably qualified and experienced person to fill the nominated position, on a long-term basis. The evidence before the Tribunal is that the applicant is committed to providing employment opportunities to Australian citizens and permanent residents, and consistently advertises locally to recruit Managers (as well as other staff) for its restaurants. However, the evidence before the Tribunal is that it is the applicant’s experience that it is extremely difficult to attract a person to a management position and then retain them for the several years of training and development that is required to be competent to perform the Restaurant Manager role. The Tribunal has had regard to the oral and documentary evidence before it which indicates that the position is challenging; there is high attrition before the nominated position is attained; and the applicant regularly employs both Australian citizens and permanent residents as well as temporary residents.
The Tribunal also takes into account the opinion of the regional certifying body, which it notes to be the Government of Western Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.
The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument: r.5.19(4)(h)(i)(A).
The delegate was not satisfied that the duties of the nominated position corresponded closely enough to the ANZSCO occupation of Retail Manager (ANZSCO 142111), finding that they were closer to those of a Retail Supervisor (ANZSCO 621511). The significance of this distinction is that the occupation of Retail Manager is a skill level 2 occupation and is specified in the relevant legislative instrument, IMMI 15/083. However, the occupation of Retail Supervisor is a skill level 4 occupation and is not specified in the relevant instrument.

As to whether the task of the particular position nominated by the applicant corresponds with the occupation of Retail Manager, the Tribunal has had regard to the comprehensive material provided in support of the review application, including evidence that was not previously available to the delegate at the time of decision, as well as the further oral evidence provided to the Tribunal during the hearing.
The respective ANZSCO occupational descriptions for a Retail Manager and a Retail Supervisor (which has its own Unit Group) are as follows:
UNIT GROUP 1421 RETAIL MANAGERS
RETAIL MANAGERS organise and control the 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 (ANZSCO Skill Level 2)

In New Zealand:
NZQF Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
odetermining product mix, stock levels and service standards
oformulating and implementing purchasing and marketing policies, and setting prices
opromoting and advertising the establishment's goods and services
oselling goods and services to customers and advising them on product use
omaintaining records of stock levels and financial transactions
oundertaking budgeting for the establishment
ocontrolling selection, training and supervision of staff
oensuring compliance with occupational health and safety regulations

Occupations:
142111 Retail Manager (General)
142112 Antique Dealer
142113 Betting Agency Manager
142114 Hair or Beauty Salon Manager
142115 Post Office Manager
142116 Travel Agency Manager

142111 RETAIL MANAGER (GENERAL)

Alternative Titles:
Retail Store Manager
Shop Manager

Organises and controls the operations of a retail trading establishment.
Retail Pharmacists are excluded from this occupation. Retail Pharmacists are included in Unit Group 2515 Pharmacists, in Occupation 251513 Retail Pharmacist.
Skill Level: 2
Specialisations:
Fast Food Manager
Newsagent
Retail Bakery Manager
…
UNIT GROUP 6215 RETAIL SUPERVISORS
RETAIL SUPERVISORS supervise and coordinate the activities of retail sales workers.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate II or III (ANZSCO Skill Level 4)

In New Zealand:
NZQF Level 2 or 3 qualification (ANZSCO Skill Level 4)

At least one year of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
oensuring that customers receive prompt service and quality goods and services
oresponding to customers' inquiries and complaints about goods and services
oplanning and preparing work schedules and assigning staff to specific duties
ointerviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances
oinstructing staff on how to handle difficult and complicated sales procedures
oexamining returned goods and deciding on appropriate action
otaking inventory of goods for sale and ordering new stock
oensuring that goods and services are correctly priced and displayed
oensuring safety and security procedures are enforced
Occupation:
621511 Retail Supervisor

621511 RETAIL SUPERVISOR

Alternative Titles:
Checkout Supervisor
Sales Department Supervisor

Supervises and coordinates the activities of retail sales workers.
Skill Level: 4
The delegate’s decision records that the nominator operates a franchise business, and as such, a significant proportion of the business operation is pre-determined by the franchise agreement, which exercises influence over many areas of the business operation. The delegate was concerned that the nominated position has limited scope in relation to many of the Retail Manager duties, including 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; and undertaking budgeting for the establishment. The Tribunal notes that a copy of the Licence between the applicant and McDonald’s Australia Limited was not submitted to the Department with the application, and therefore the application was considered by the delegate in the broad context of the usual relationship a franchisee has with a franchisor.
As to whether the task of the particular position nominated by the applicant corresponds with the occupation of Retail Manager, the Tribunal has had regard to the written submissions in support of the review application. Within those materials there is a table drawing references between tasks associated with the Retail Manager occupation and particular key performance criteria from the applicant’s job description documentation, which the Tribunal found to be persuasive. The Tribunal also found the oral evidence given during the hearing, of the nature and tasks associated with the particular occupation and position within the applicant company, to be particularly useful.
The Tribunal was told that while direction is taken from the McDonald’s Corporation, it would be financially illogical for a franchise in one location to operate in the same way as a franchise in another location, with a completely different demographic. The Tribunal was told that there is, in fact, flexibility within the franchise framework, and the Restaurant Manager is involved in ensuring that the product provided caters to the local area and in making decisions about the direction of the store in general. Mr Creasey explained to the Tribunal that the Restaurant Manager is totally responsible for running a store.
The Tribunal was told that the tasks performed by the nominated position did involve decision-making around product mix, in that the particular location of the store required an assessment about marketability of some products as opposed to others. It was told that stock is the biggest cost of the business, and so it would not make financial sense, for example, if the store were to follow a formulaic approach without some analysis of which products sell better than others. While it is true that the restaurant’s business focus operates within the confines of the franchise paradigm, the nominated position is nonetheless required to oversee and balance the product mix to avoid unnecessary waste, and to operate this business to be relevant to its customer base.
The Tribunal was told that while the applicant pays a national marketing subsidy under the terms of their Licence with McDonald’s Australia, within the franchise arrangement, the nominated position is provided with a marketing budget and permitted to initiate their own local promotions and advertising to promote business. By way of example, the Tribunal was told the nominee is able to initiate marketing promotions relevant to school fundraising ideas, local sporting groups, and community charity events. Within the franchise arrangement, the Restaurant Manager is also permitted to run local deals and campaigns to promote to local customers. The Tribunal accepts the evidence before it that the nominated position is responsible for engaging, formulating and implementing marketing strategies to promote the business at a local level.
Mr Creasey told the Tribunal that pricing of products is reviewed by the applicant’s Restaurant Managers in store about every six months. He said that although McDonald’s Australia provides guidance in relation to prices, a Restaurant Manager is ultimately responsible for carrying out analysis (including traffic indicators and identifying other local restaurant closures); reviewing pricing from McDonald’s Australia; making adjustments based on what is best for their store; and then implementing those prices.
The Tribunal was told that Restaurant Managers are responsible for undertaking the budgeting in respect of the store they are responsible for. Mr Creasey gave evidence that the nominated position is responsible for preparing an annual budget as well as carrying out mid-month and end of month review and analysis to track operational performance. The Tribunal was also told that the applicant’s Restaurant Managers are required to present their store’s budget and report on business operations to Mr Creasey on a regular basis to ensure budgets are being met and profit guidelines are being achieved.
Evidence has been provided that the nominated position is responsible for managing the maintenance and repair issues of the store as well as ensuring compliance with strict health and safety requirements. At the hearing, Mr Creasey explained to the Tribunal that each of the applicant’s franchise stores are subject to regular compliance, performance and systems checks as well as random auditing by the Licensor, and that the Restaurant Manager is responsible for dealing with any issues arising out of these processes.
Evidence has also been provided to the Tribunal which indicates the nominated position performs other higher-level decision making about the store. The Tribunal accepts that the nominated position is responsible for managing a large, complex and varied work force, comprising casual, part-time and full-time employees, as well as contractors. The position has responsibility for the dine-in, takeaway and delivery operations of the business. Training demands on the nominated role, given the nature of the workforce of the business, are also high and from the evidence it is clear to the Tribunal that the nominated position is responsible for managing the store’s shifts and rostering systems. In addition, the Restaurant Manager is required to be proactive with staff recruitment, and also, utilise a training budget to ensure the right people are being offered training opportunities.
The Tribunal has given careful consideration to the oral evidence as well as the written submissions provided to it, and is persuaded that the nominated position has a great deal of managerial responsibility and performs an important role in the applicant’s business, at a skill level that is more closely aligned with the ANZSCO description of a Retail Manager.
The Tribunal has also had regard to the Organisational Chart provided to it by the applicant and the location of the nominated position within the hierarchy of its company. The Organisational Chart indicates that the nominated position reports to Operations Consultants, who report to a People and Culture Manager, who report to Mr Stannard, who in turn reports to Mr Creasey. The evidence before the Tribunal reflects that Operations Consultants are the “policemen of the business”, who execute relevant training of McDonald’s Systems and check compliance with those Systems; the People and Culture Manager is a part-time role performed remotely and responsible for ensuring employment contracts are correctly completed and staff members are set up in the payroll system; and the General Manager provides leadership, mentoring, coaching and direction to the senior management personnel within the company, and is responsible for maximising the long-term sales and profit potential of the overall applicant business. From this, the Tribunal concludes that the nominated position is primarily responsible for managing the day to day operations of the Melville store.
Accordingly, in the circumstances of this case, the Tribunal is satisfied that tasks associated with the nominated position sufficiently correspond to those of the occupation of Retail Manager (General) (ANZSCO 142111), being an occupation that is specified in IMMI 15/083. The Tribunal further finds that the tasks of the nominated position appear to be vastly more complex and require significantly more skill than the tasks identified for a Retail Supervisor, having regard to the size, scope and nature of the business.
The Tribunal notes in passing that the nominee holds a Bachelor of Science (Business Administration) degree. He also has experience working for the McDonald’s Corporation, as a Restaurant Manager for well over five years.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 10 October 2016 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 16/045.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e ) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:
- There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
- The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
- The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Nicola Findson

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 5457

2 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction