The Nossir Family Trust (Migration)

The Nossir Family Trust (Migration) [2020] AATA 4045 (29 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Nossir Family Trust
CASE NUMBER:  1802421
HOME AFFAIRS REFERENCE(S):          BCC2016/1942953
MEMBER:Peter Emmerton
DATE:29 September 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 29 September 2020 at 12:43pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direction entry stream – need for and tasks of position – director not actively involved in management – challenges of recruiting for position – nominee’s tasks compared to ANZSCO description – company’s performance during COVID-19 pandemic – director’s plans for expansion – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(i), (ii)(D)
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 3 June 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) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Nor subsequently 5.19(4)(h)(i) of the Regulations because the nominated tasks do not therefore correspond to the tasks of an occupation specified by the Minister.
The applicant appeared before the Tribunal, via telephone, on 29 September 2020, represented by Ms Glynis Fay Hosam, Director, on behalf of The Nossir Family Trust, in a combined hearing with MRT file reference 1806153, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sunita Mall, the visa applicant.
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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its’ registered migration agent.
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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The Tribunal found the applicants participating in the hearing appeared truthful and answered to the best of their ability without any apparent obfuscation.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity owns and runs a substantial Middle Eastern cuisine restaurant, in regional Western Australia which is approximately 2 hours by car south-west of Perth, WA.
The total number of staff employed in the restaurant subject to this review is 13-14, composed of 2 Restaurant Managers, reporting directly the Retail Manager (General) position, and 12 customer service and kitchen staff.
The visa applicant’s substantial responsibilities, previous experience, qualifications, current years of management responsibilities and attributes, substantially align with the duties associated with a Retail Manager (General), ANZSCO 142111.
The visa applicant possesses a Diploma of Hospitality Management, an Advanced Diploma of Management, a Certificate lll in Hospitality, a Certificate IV in Commercial Cookery and a Certificate IV in Frontline Management, all achieved in Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in retail businesses with limited opportunities for advancement. The Tribunal also notes that the Director has a substantial and growing enterprise under her control and is planning on future expansion which may include franchising. There are 4 retail segments, (in house dining, take-away, catering and home delivery.
The Tribunal received and accepted evidence from the nominator, of the salary determination and recruitment processes. This role was first advertised in April 2016 and again in April 2018. which included 1 applicant, (the visa applicant) who was initially short listed and interviewed. The nominator stated that they had to wait 1 year before the applicant was available to commence in the role. The Tribunal notes the associated proof of advertising in electronic media, in support of their recruitment for the position. It also notes the statements provided by the nominator attesting to their recruitment efforts and the associated detailed statement as to why the role was challenging to fill and their need to fill the role. The Tribunal accepts that the location approximately 2 hours by car from Perth may have substantially limited the potential talent pool.
The Tribunal additionally accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period with the provision for extension. The current contract of employment dated 1 July 2020 stated the salary as $57,500 inclusive of 9.5% Superannuation, which appears to be in the mid quartiles of similar role’s remuneration levels.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a substantial number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal accepts the widely circulated reports that the demands upon fast-food and restaurant outlets have increased considerably during the current Covid-19 pandemic. The Director stated that it had a relatively brief overall impact upon revenues, ($200,000 in 2 months) due to the centre’s closure but revenues have rebounded quickly to pre-pandemic levels. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position in this relatively geographically isolated regional, WA location.
The Tribunal acknowledges that a ‘Satisfied’, RCB Certificate has been issued by the relevant certifying body in Western Australia. The date of the certificate is 22 June 2016.
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 finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes from the current Organisation Chart, that the retail business is operating on a substantial staffing ratio of 2 Restaurant Manager level positions reporting to the nominee plus 11 full-time, part-time and casual, front of house and kitchen staff. This is in part due to the 4 modes of product retailing. The number of employees and the complexity of tasks associated with the staff rostered over extensive opening and preparation hours would, in the experience of the Tribunal clearly suggest the need for a full-time General Manager.
The Tribunal accepts the statement that the Director responsible for this outlet does not work in the restaurant and lives 2 hours away closer to Perth.
It would appear logical that regardless of the skilful utilisation of technology, the Director is unable to undertake the daily duties of a General Manager unless present for the substantial operating hours. Nor is it likely that the operation could successfully sustain itself, maintain quality outputs or meet its’ legal responsibilities in relation to OH & S, General HR matters and safe food handling governance requirements without a relatively autonomous, locally employed General Manger.
The Tribunal observes that a considerable additional impost has been placed upon retail outlets and delivery restaurants since the advent of the current Covid-19 pandemic and the implementation of resultant additional operating processes and procedures. This must undoubtably add even more immediate leadership responsibilities to the General Manager’s role. The Tribunal is aware that each of the 4 modes of product retailing, dine-in, take away, catering and home delivery services have a range of additional imposts upon the business.
The Tribunal questioned the nominator regarding future expansion into a 500% larger venue which is well under way. Likewise, the future franchising opportunities were discussed with both the nominator and nominee.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Retail Manager (General), under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1) 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.
The Tribunal has been provided with a range of, Profit and Loss Statements, including those produced for FY 2018, FY 2019 and 2020 in addition to current BAS Statements, all of which correlated. ASIC Registration details were also researched by the Tribunal for this business entity. The Tribunal checked the status of the listed ABN, (19 716 162 258), which has been active since 11 March 2015 and perused the associated company web sites and App. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. 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. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
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.
The Tribunal has had regard to the Employment Agreement and position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
The Tribunal notes that the business appears to have substantial growing revenues, increasing at a rate of approximately 15% year on year and proportionally aligned profit. The assertion made by the nominator that the visa applicant has been responsible for the good performance of the outlet, even under the Covid-19 adversity, is accepted by the Tribunal. The stability of the nominating entity in an ever increasing and competitive market attests to the nominator’s ability to operate successfully. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(h)(i) is met.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services, particularly in light of the nominator not working in the restaurant under the visa applicant’s management but overseeing them solely at a Director level. It is aware that the workforce is mobile, that the specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. It is serendipitous that the visa applicant was already living in this regional community. The Tribunal is also cognisant of industry competitor’s actively targeting competing businesses and trying to poach their key staff in order to overcome staff shortages or obtain a market advantage. In addition, it is acknowledged that these roles are not always highly sought after by appropriately qualified personnel as they are modestly rewarded but also present challenging workloads, hours of operation and responsibilities.
No less favourable terms and condition 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 been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s current annual salary of $57,500 including Superannuation, as appropriate and is reflective of their experience relevant to the nominated position. It notes that it is in-line with the current relevant Award. The Tribunal accepts the evidence presented attesting to the visa applicant’s appropriate academic qualifications, (paragraph 16) and experience.
The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. It is also acknowledged that the other work-place conditions stated in the contract align with current legislative and regulatory requirements. 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 evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. 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. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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 alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are 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 Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size and scope of the nominating entity’s business operations and the extended staffing hours required due to the mandated operating hours of the 7 day per week business. It is self-evident from the previously stated evidence that the nominator cannot operate this growing business entity without a substantial and relatively self-contained general management structure in place unless they are actually present to manage the operation themselves.
In addition, the Tribunal observes the very considerable additional challenges associated with a predominantly young staff, who often commence their employment in establishments such as this. They tend to work part-time, are highly mobile with competing demands on their loyalty and need constant mentoring and training. The Tribunal accepts as fact the evidence placed before it that more than 50 staff have been employed over a 5-year period. This level of staff mobility places an additional layer of work and responsibility upon a General Manager. It is reasonable to assume that a great deal of care and training must be deployed when staff are young and relatively transient.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
Evidence was presented to the Tribunal regarding the 2 recruitment processes included the number of applicants, (1), the 1 applicant initially short-listed and interviewed for the position and the subsequent lack of suitably qualified and experienced applicants other than the nominee. Once again it is acknowledged that a manager with the skill set possessed by the visa applicant living in the area was serendipitous for the nominator. The Tribunal acknowledges that there are a large number and range of retail management roles readily available in Perth, regional Western Australia and throughout Australia. The demands of the job, regional location and hours and complex responsibilities of this role may not have proven overly attractive to some candidates. The relatively isolated location in Western Australia may also provide a negative employment circumstance further limiting the potential candidate pool.

The Tribunal observes that a substantially more comprehensive evidence base was provided to it, than was presented to the delegate at the time of their decision. This is in part due to the more than 4 years which have elapsed since the original application was made. The Tribunal is also aware of the employment market distortions created by the mining industry cycles in Western Australia and is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Nor 5.19(4)(h)(i) of the Regulations because the nominated tasks do not subsequently correspond to the tasks of an occupation specified by the Minister.
The Tribunal has formed a different view. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 142111 for Retail Manager (General) and the stated duties of the visa applicant. The Tribunal acknowledges that the ANZSCO descriptors are a guide, not a mandatory definitive reference. Once again, it notes that the business owner clearly occupies the role of Director rather than on the floor management and does not work as a Manager in the business. This assessment is supported by evidence presented prior to the hearing and corroborated at the hearing regarding competing responsibilities and physical location of the nominator.
Additionally, the 7 day per week opening hours of the business coupled with the number of staff clearly indicates the need for a General Manager to operate and manage the business. The 2 Supervisory Restaurant Manager level positions reporting to the visa applicant further demonstrates the appropriate classification of this role as Retail Manager (General). This would by necessity most likely lead to a considerable degree of autonomy being associated with the role, as is reasonably expected of a General Manager in an ANZSCO level 2 designated position. This was corroborated by both parties and the evidence given during the hearing.
Whilst the visa applicant, would most likely report performance in all KPI areas via established systems and seek input from the Director of the business at their weekly and monthly management meetings. This coincides with the Tribunal’s expectations of a Retail Manager (General) directly reporting to the Director of a business.
The Tribunal acknowledges that this is a substantial-sized retail operation with a rapidly growing large annual turnover. It is in no doubt the visa applicant requires a degree of flexibility and subsequent autonomy performing the many and varied work duties, as you might expect in such a retail operation. The Tribunal has also concluded that a General Manager is required to oversee the retail business and does operate largely in-line with the ANZSCO 142111 specifications in order to meet logistic and work health and safety and safe food handling governance requirements, whilst satisfying customer service, product quality expectations and requirements. The Tribunal again observes that the visa applicant clearly has a key role in the future restaurant expansion and the franchising planning and execution.
The position of Retail Manager (General), ANZSCO 142111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
The Tribunal has had regard to Form 1404 issued by an RCB (WA Department of Training and Workforce Development), dated 22 June 2016 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
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.
Peter Emmerton

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 4045

29 September 2020

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