The Trustee for Subleaver Trust (Migration)

The Trustee for Subleaver Trust (Migration) [2019] AATA 4136 (5 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for Subleaver Trust
CASE NUMBER:  1800910
DIBP REFERENCE(S):  BCC2016/1612944
MEMBER:Peter Emmerton
DATE:5 September 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 September 2019 at 12:11pm
CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Retail Manager – genuine need for paid employee in position – position cannot be filled locally – duties in line with ANZSCO – financial capacity to employ nominee for minimum two years – evidence of recruitment process provided – employment extension not precluded – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 245AR
Migration Regulations 1994 (Cth), rr 1.13, 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 Immigration on 3 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 2 May 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
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 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 particular circumstances.
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 runs a salad and sandwich retail operation in Perth, Western Australia. The business had originally been in a franchise agreement at the time of the delegate’s decision. They have subsequently exited the agreement, are operating as a stand-alone business and therefore receive no associated support. The total number of staff employed in the store is currently 8 including the visa applicant.
The visa applicant’s responsibilities, previous experience, current years of management responsibilities and attributes, clearly align with the duties associated with a Retail Manager (General), ANZSCO 142111.
The visa applicant possesses a Diploma of Business Management gained 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 received and accepted evidence from the nominator, of the salary determination and recruitment processes, which included 25 applicants, 3 of whom were initially interviewed and short listed. The Tribunal notes the associated proof of advertising in support of their recruitment for the position. It also notes the statement provided by the nominator attesting to their recruitment efforts and the associated statement as to why the other applicants were unsuitable when compared to the visa applicant.
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 contract of employment, dated 29 January 2016 stated the salary is $40,000 plus 9.5% Superannuation, which appears to be in the bottom quartile of similar role’s remuneration levels. The associated Payslips for the visa applicant relating to the first half of 2019 show a correlating hourly rate of remuneration.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a large number of related vacancies, in a wide variety of locations and organisations currently under recruitment. 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 Perth, WA location.
The Tribunal notes that a ‘Satisfied’, RCB Certificate has been issued by the relevant certifying body. The date of the certificate is 6 April 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 staffing ratio of 7 reports employed on a full-time, casual or part-time basis, reporting to the nominee. This is in part due to the working hours associated with the mandated 7 day per week hours of operation. The Tribunal notes and accepts the evidence provided, that the Directors do not work in the business and have full-time employment elsewhere. It also accepts that this is a replacement position for their son who had been the previous Manager prior to departing to pursue other interests. The number of employees and the complexity of tasks associated with such a substantial number of staff rostered over extensive opening hours would, in the experience of the Tribunal strongly suggest the need for a full-time General Manager.
It would appear logical that regardless of the skilful utilisation of technology, that the Directors are unable to undertake the daily duties of General Management unless present for the substantial operating hours. This business is largely a hands-on operation requiring rapid service at peak times. Nor is it likely that the operation could successfully sustain itself, maintain quality outputs or meet its’ legal responsibilities in regards to OH & S, general HR matters and the safe food handling requirements without a relatively autonomous, locally employed General Manger.
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 Business Tax Returns, Profit and Loss Statements, BAS statements, including those produced for FY 2018 and FY 2017, 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 and perused the company web site. 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 notes that the business appears to have, stable revenues and growing profit following the termination of the franchise arrangement. The stability of the nominating entity in an ever increasing market, coupled with evidence of its’ Business Planning further attests to its’ ability to employ the visa applicant. 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 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 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 store under the visa applicant’s management but overseeing them at a Director level. It is aware that the workforce is highly mobile and the specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff in order to obtain a market advantage.
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 $40,000 plus Superannuation, as appropriate and is reflective of their experience relevant to the nominated position. The visa applicant has a Diploma of Business Management gained in Australia. 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, as in this instance, where no other employees occupy a similar position. 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 business. It is self-evident from the previously stated evidence that the nominator cannot operate this growing business entity without a relatively self-contained general management structure in place.
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 recruitment process included the number of applicants (25), those initially interviewed (3) and the subsequent lack of suitably qualified and experienced applicants other than the nominee. The Tribunal acknowledges that there are a large number and range of retail management roles readily available in Perth and throughout Australia. The demands of the job, suburban location and hours of this role may not have proven overly attractive to some candidates. The relatively isolated location in Perth, 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. It again reflects on the change of circumstance from being a franchised outlet to a totally self-sufficient operation. 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. Once again, it notes that the business owners appear to occupy the role of Director rather than on the floor management and do not work in the businesses managed by the visa applicant. Additionally the substantial 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. This is more apparent following the termination of the previous franchise agreement as the business is now totally self-sufficient in all aspects of its’ operations. The Tribunal notes this occurred after the delegate made their decision. 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.
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, this coincides with the Tribunal’s expectations of a Retail Manager (General) directly reporting to the Director of a business.
The Tribunal accepts that a franchised operation, as per the circumstance at the time of the delegate’s decision, may not appear to be a particularly sophisticated business. The Tribunal also accepts that some of the autonomous functions may be reduced because of the franchising support and associated systems. It observes that without skilled General Management and local input into areas such as marketing, staffing deployment, OH&S, food safety etc., the potential for business failure is substantial. It is acknowledged, within the corporate sector that franchised businesses are less likely than average to fail in their first 5 years of operation, that fact does not negate the reality that many do and the root cause is commonly a lack of skilled management or insufficient management focus due to limited time and capacity coupled with goal diffusion.
The Tribunal notes from the evidence presented by the owners, that this appears to be one of the contributing factors leading to the demise of the sister outlet under the previous franchising agreements. It again takes into consideration that this is now an independent operation with no external supporting structures.
The Tribunal acknowledges this is a mid-size retail operation with a moderately large annual turnover. It is in no doubt the visa applicant requires a degree of flexibility 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 standards coupled with safe food-handling requirements, whilst satisfying customer service and product quality expectations.

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)(i) and 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 6 April 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).

[2019] AATA 4136

5 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction