The Trustee For Subway Bridge Street Unit Trust (Migration)

The Trustee For Subway Bridge Street Unit Trust (Migration) [2022] AATA 1035 (17 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: The Trustee for Subway Bridge Street Unit Trust
CASE NUMBER:  1902626
HOME AFFAIRS REFERENCE(S):          BCC2017/2118169
MEMBER:De-Anne Kelly
DATE:17 January 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 17 January 2022 at 1:38pm
CATCHWORDS
MIGRATION – nomination – Retail Manager 142111 – Direct Entry nomination stream – tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument – Tribunal is satisfied that the visa applicant is operating at the required level – genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359, 360
Migration Regulations 1994, 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 18 January 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 15 June 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4)(h)(ii)(D) of the Regulations because the business is a Subway franchise and the delegate found that in the absence of a job description that the pre-dominant tasks of the position are not those of an ANZSCO skills level 2 Retail Manager but rather more closely correspond with those of an ANZSCO skills level 4 retail supervisory position.
The applicant appeared before the Tribunal on 14 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the director’s daughter Ms Deborah Jonestone.
The applicant was represented in relation to the review by Ms Athina Stephanou MARN: 0103875.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
Evidence
The evidence considered in this case was any documents provided with the original application to the Department and subsequently and evidence at hearing.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.
It does not oblige the Tribunal to send a s.359(2) letter with a request for documents nor does it oblige the Tribunal to provide time post-hearing for the filing of documents. It is clear from the Invitation to Attend Hearing that the applicant is expected to file relevant material at least seven (7) days prior to the hearing date. The Tribunal would permit an applicant to file documents after a hearing only where it is clear those documents could not be obtained prior to the hearing; where a new matter has been raised by the Tribunal that the applicant may not have reasonably been aware of or similar circumstances that would necessitate it to allow post hearing filing on the basis of procedural fairness or natural justice.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 15 June 2017 the nominator Subway Bridge Street Pty Ltd ATF Subway Bridge Street Unit Trust ABN: 74 434 930 120 lodged a Regional Sponsored Migration Scheme employer nomination in the Direct Entry Stream for the position of Retail Manager on $42,640 in favour of Mr Farhan Shaikh to be employed at Bridge Street Subway, Bridge Street Toowoomba QLD 4350.
Mrs Hazel Johnstone represented the applicant and explained that they have a multi-unit Subway franchise and own all the Subway stores in Toowoomba totalling six (6) in operation now. Mrs Johnstone is a quietly spoken, impressive and forthright businesswoman having worked in her Subway stores for 26 years. They have a head office run by Ms Deborah Johnstone and Mrs Johnstone consults and undertakes particular roles as needed.
The application is compliant: reg 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.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 15 June 2017 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Farhan Shaikh was identified in the nomination application.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
Financial statements for FY 2020 and 2019 and recent BAS statements demonstrate that the applicant is actively and lawfully operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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 that the business labour hires, and the company representative confirmed this in the hearing.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 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.

2020 2019

Income 2,181,507      1,997,680

Expenses 1,955,227      2,125,963

Profit      237,279 -     128,282

The business has made very sound profit in FY 2020 allowing for some Jobkeeper payments however this is the case for most businesses around Australia. The Tribunal also notes that other legal entities owned by the family operate Subway franchises and the Tribunal acknowledges that the applicant has loans from one entity to another and is able to support an individual business if required. The Tribunal finds that the applicant has the financial capacity such that the nominee will be employed in the nominated position for at least two (2) years full time.
There is an employment contract dated 22 May 2017 which does not expressly exclude the possibility of an extension and the latest employment contract shows a salary of $65,000 per annum.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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.
Payscale analysis shows a salary range from $20 to $28 per hour or $36,400 to $50,960 per annum so the latest salary from payslips of $65,000 per annum is certainly no less favourable than the terms and conditions that would be provided to an Australian citizen or Australian permanent resident undertaking equivalent work in the same workplace at the same location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator. This was confirmed by the applicant at the hearing.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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.
Mrs Johnstone advised that a disgruntled former employee lodged an unfair dismissal claim against the company some 12 years ago and was unsuccessful but to ameliorate the circumstances they gave her $400. This does not constitute an unsatisfactory record.
The Tribunal can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the applicant at the hearing.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in an instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
Position in regional area – r.5.19(4)(h)(ii)(A)
The Tribunal needs to determine if the position is in regional Australia. The business is located in Toowoomba QLD 4350. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia. The applicant can choose therefore to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.
Accordingly, r.5.19(4)(h)(ii)(A) is met.
Genuine need for the position r.5.19(4)(h)(ii)(B).
The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control. The Tribunal has noted the increased profitability of the business in FY 2020 despite the COVID-19 pandemic.
Mrs Johnstone advised that the visa applicant has been working in the business since 2017 or more than four (4) years. The Tribunal places considerable weight on the fact that a visa applicant has filled the position for such a long period of time and believes this indicates a genuine need for the position in the business. Both Mrs Johnstone and her daughter explained that without the nominee to manage the store they would have to close it and although they did not state that the jobs of Australian citizens or Australian permanent residents would be lost this is clearly the logical conclusion to be drawn. Both women said the loss of the nomination would be an emotional and financial disaster for the business.
The Tribunal finds for the reasons above that there is a genuine need for the nominator to employ a person, Mr Farhan Shaikh identified under r.5.19(4)(a)(ii) as a paid employee to work in the position of Retail Manager under the nominator’s direct control.
Accordingly, r.5.19(4)(h)(ii)(B) is met.
Cannot be filled. r.5.19(4)(h)(ii)(C)
The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The applicant advertised on Gumtree and had 50 views and some applications but they either lacked experience or simply wanted a visa and were unsuitable. Mrs Johnstone said it is very difficult to attract or find skilled staff in the regions such as Toowoomba. The employment contract was signed on 15 May 2017.
The Tribunal finds that the position of Retail Manager cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
Accordingly, r.5.19(4)(h)(ii)(C) is met.
Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)
The Tribunal is aware that this is the reason the delegate refused the employer nomination and as such has carefully considered the Position Description provided by the applicant and compared the tasks against those in the ANZSCO 142111 Retail Manager as shown below.
1.     determining product mix, stock levels and service standards
2.     formulating and implementing purchasing and marketing policies, and setting prices
3.     promoting and advertising the establishment's goods and services
4.     selling goods and services to customers and advising them on product use
5.     maintaining records of stock levels and financial transactions
6.     undertaking budgeting for the establishment
7.     controlling selection, training and supervision of staff.
8.     ensuring compliance with occupational health and safety regulations
The Tribunal has considered the overall responsibility from the ANZSCO which states, “RETAIL MANAGERS organise and control the operations of establishments which provide retail services.”
The job description is as follows.
Typical job responsibilities include:
•recruiting, training and supervising staff
•setting and managing budgets and employee records
•ensuring compliance with licensing. hygiene, health and safety legislation/guidelines
•liaising with franchisee/operations co-ordinator regarding marketing the business and business development
overseeing stock levels and inventory management
•ordering supplies
•producing staff rosters
•monitoring food preparation. food safety. quality standards, customer services and sales performance
•handling customer enquiries and complaints about food quality or service
•greeting and servingcustomers
•problem solving
•total receipts and balance against sales. deposit receipts. and lock facility at the end of day
•preparing and presenting staffing/salesreports
•responsible for n11ming sales reports
•assessing and improving profitability
•setting targets
•handling administration and paperwork
•liaising with customers, employees, suppliers
•making improvements to the running of the business and developing future growth
•upskilling team members and developing a junior management team
Generally, the Tribunal finds that a franchised business has the benefits of a Franchisor who provides a high level of management support which incorporates many of the higher-level managerial tasks of a nominated position. This is the attraction that a franchise has to many small businesspeople as it absolves them of the onerous tasks and responsibilities that an independent business operation presents however it can cause the Tribunal to find that these tasks are absorbed into the Franchisors support system and therefore the nominated position’s tasks may not correspond to the ANZSCO.

The Tribunal has taken into account the fact that this applicant has a multi-franchise operation and Mrs and Ms Johnstone have no opportunity to intervene in the operation such that they exert managerial control. However, the applicant advised that this store is a “drive through” and as such has additional challenges in terms of timely service, multiple client access points and quick turnarounds in customer service.
Mrs Johnstone advised that although the franchisor determined largely the product mix they relied a good deal on specials especially for school deliveries. They surveyed their customers with regard to service delivery and rewarded them with a free cookie and implemented their service recommendations; the managers choose the mix of suppliers and they distribute platters to schools for staff and students which are special orders. Although one would expect prices to be dictated by the franchisor they have their own price differentials across their six stores as some are more price sensitive than others. The Tribunal considers that task (1) of the ANZSCO is largely undertaken by the nominated position and as such this high-level task is performed by the nominated position. The majority of the remaining ANZSCO tasks are largely undertaken by the nominated position.
The Tribunal has taken all these factors into account and finds 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 namely Retail Manager 142111
Accordingly, r.5.19(4)(h)(ii)(D) is met.
Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)
The nominee has a Diploma of Business obtained in Australia and has been working from 2017 onwards. The Tribunal finds that the occupation is applicable to the person, identified under subparagraph (a)(ii) in accordance with the specification of the Retail Manager 142111.
Accordingly, r.5.19(4)(h)(ii)(DA) is met.
Business operated at that place. r.5.19(4)(h)(ii)(E)
The business of the nominator is located at Toowoomba QLD 4350 and is in ‘that place’ that was specified in the employer nomination.
Accordingly, r.5.19(4)(h)(ii)(E) is met.
Regional certifying body r.5.19(4)(h)(ii)(F)
Chamber of Commerce and Industry Queensland as the responsible regional certifying body on 14 June 2017 certified the application as meeting r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and has therefore advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraph (B) and (C).
Accordingly, r.5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of r.5.19(4)(h) and r.5.19(4) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
De-Anne Kelly
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
Schedule 1 – Documents
The Trustee for Subway Bridge Street Unit Trust.
1)Online application (15 June 2017).
2)Acknowledgement of nomination (15 June 2017).
3)Market salary analysis including details from pay scale and advertisements.
4)BAS statements FY 2016, FY 2017, FY 2018
5)Employment contract dated 15 May 2017.
6)Letter from leasing representative dated 1998.
7)Franchise agreement between applicant and Subway Systems Australian Pty Ltd.
8)ASIC registration.
9)Job description.
10)Regional certifying body advise and Form 1404.
11)Organisational Chart showing franchisee/operations coordinator and nominated position both working full-time.
12)ABN lookup extract.
13)Certification form - paying for visa sponsorship.
14)Further organisational chart.
15)Employer statement, undated.
16)Payslips for the nominee.
17)Financial statement for FY 2017.
18)PAYG payment summaries for the nominee.
19)Genuine position statement from the agent undated.
20)Google search extract for the applicant.
21)Question from the Department for more information addressed to the applicant 18 December 2018.
22)Subway store manager and shift manager job descriptions.
23)Employment contract dated 15 January 2019.
24)Submission from the agent-detailed position description of store manager compared to shift manager undated.
25)Email dated 16 January 2019 from agent to the department regarding uploaded documents.
Documents including the following were provided with the review application
26)Nomination refusal including notice of decision dated 18 January 2018.
27)Email dated 3 September 2021 from the applicant asking for the case to be prioritised.
28)Response from the Tribunal dated 20 September 2021 declining priority processing.
29)ABN details.
30)Trust deed.
31)Financial statements FY 2020, FY 2019 and FY 2018.
32)Management report for FY 2021
33)Letter from the accountants dated 17 November 2021 regarding payment arrangement with the Australian tax office.
34)BAS statements for FY 2020 and FY 2021.
35)Income statement for the nominee for FY 2021.
36)All payslips for the nominee for this FY 2021.
37)Market salary analysis.
38)Letter from agent dated 18 November 2021.
39)Stock order history from FY 2021 and Sample of stock orders.
40)Letter dated 20 November 2021 on the applicant staying nominee has been a full-time manager from 2019, position is ongoing and salary has been increased to $53,352.

[2022] AATA 1035

17 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies

2020	2019
Income	2,181,507	1,997,680
Expenses	1,955,227	2,125,963
Profit	237,279	- 128,282