VIGR Investments Pty Limited (Migration)

VIGR Investments Pty Limited (Migration) [2018] AATA 5628 (8 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  VIGR Investments Pty Limited
CASE NUMBER:  1728009
DIBP REFERENCE(S):  BCC2016/1587401
MEMBER:Peter Emmerton
DATE:8 October 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 08 October 2018 at 2:57pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Retail Manager – genuine need for position – role cannot be filled by Australian citizen or permanent resident – regional Australia – fresh information – tasks correspond with relevant instrument – decision under review set aside
LEGISLATION
Migration Act 1958, s 245AR(1)
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 Immigration on 23 October 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 of Retail Manager (General), ANZSCO 142111 on 29 April 2016. Mr Dhavalkumar Mohanbai Tandel was sponsored by the applicant to work in the nominated position.
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) of the Regulations because they were not satisfied that the tasks to be performed in the position correspond to the tasks specified in the relevant instrument.
The applicant represented by Ms Vicki-Leigh Lettice, the Director for VIGR Investments Pty Ltd, appeared before the Tribunal on 2 October 2018 in a joint hearing with MRT file ref 1731681 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dhavalkumar Mohanbai Tandel, the nominee. The Tribunal found all those presenting evidence to be credible and appeared to answer questions in an open and honest manner without obfuscation.
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 operates 2 McDonalds franchised restaurants in Darwin, Northern Territory. This is expanding to 3 in the second week of October 2018.
They also own 3 other NT located McDonalds franchised restaurants under a separate business entity.
The nominee has a Diploma of Hospitality Management, Certificate 4 in Hospitality (Commercial Cookery), Master of Commerce and Bachelor of Commerce Degrees.
The nominee has a very extensive history progressing in the Mc Donald’s chain of restaurants, commencing in 2008.
The Employment Contract signed by both parties on 16 November 2015 shows an annual salary package of $76,300, for a 38 hour work week. In addition, it was demonstrated at the hearing that the nominee is provided with a fully maintained vehicle and a mobile telephone. The total salary package therefore approximates $100,000 per annum.
The nominee reports directly to the owners of the business via a senior Manager and the nominee in turn manages 9 Manager and Supervisor level staff.
The 6 site operation employs approximately 800 staff throughout the Northern Territory.
The visa applicant’s responsibilities include the following:
·The employee undertakes to adhere to the company's standards as expressed and updated from time to time, in the company's office and procedure manual.
·Restaurant Manager is organising and controlling the operations of the restaurant,
People
·Model performance standards for all manager tasks, crew stations and maintenance;
·Demonstrate and enforce the leadership behaviours by setting the pace and communicating effectively;
·Enforce all people minimums and legal requirements;
·Lead the development and training of all restaurant employees.;
·Develop and implement effective succession planning to provide for future growth;
QSC/Sales Building
·Manage and establish QSC&V standards to be maintained by all managers on all shifts;
·Ensure critical standards for raw and finished product quality are maintained at all times;
·Ensure critical standards for service, speed and quality are maintained at all times;
·Be proactive in approaches to changes in volume patterns and promotional activities to ensure operational standards are maintained;
·Lead in-restaurant implementation of new products and procedures;
·Ensure effective rostering of crew to build the business on all day parts;
·Travel to Darwin for regional meetings and workshops;
Profit
·Be personally accountable for the profit results of the restaurant;
·Accurately project and control all P&L line items;
·Project and reconcile monthly P&L, identifying profit opportunities;
·Create long-term objectives and action plans for profit.
An additional a very detailed task and performance list was provided at the hearing showing the day to day very detailed responsibilities and tasks.
The Tribunal questioned Ms Lettice in substantial detail about the need for Mr Tandel’s position and why it could not be filled by an Australian citizen. The challenges associated with hiring and subsequently retaining a Retail Manager with Mr Tandel’s qualifications, experience, attitude and background, into their organisation, were clearly articulated.
The Tribunal acknowledges that staffing stability is an acute issue relating to the transient nature of Darwin’s population. Evidence was provided to the Tribunal of the salary determination and recruitment process, which was utilised when recruiting for this role. Evidence was also provided prior to the hearing demonstrating the ongoing and multiple channel recruitment activities utilised in an effort to adequately staff their operations. The nominator in a statement prior to the hearing made reference to the fact that staffing was the single biggest restraint upon their business growth.
The Tribunal acknowledges the assertion, corroborated by both parties at the hearing that several hours each week are set aside by the visa applicant for ongoing recruitment interviews.
The Tribunal perused popular employment web sites prior to the hearing in order to ascertain the current state of the market in this field. The Tribunal observed a 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. This may add further weight to the argument that recruitment and retention has proven challenging.
The Tribunal also notes that an RCB Certificate has been issued by the relevant certifying body, following their acceptance of the compliance measures undertaken by the nominating entity. The date of the certificate is 9 May 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 and discussed with the Director that the operation, which is operating with clear and very comprehensive KPI’s for the Manager involving all aspects of the restaurant, as you would expect of a General Manager reporting to an owner of a business who clearly has no capacity to operate on a day by day basis in the business.
The Tribunal also notes that the delegate expressed a view that a franchised business would be employing a Manager at a supervisory level 4, not a level 2 position as described by ANZSCO. The Tribunal does not have this view. A very large number of businesses are franchised operations, for example international food outlets, international hotels and home maintenance businesses. Whilst the Tribunal appreciates that an added level of structure is provided by the franchising entity in order to meet standards and increase the chance of individual business owner’s success it does not manage the business. It is also worth noting that this is 1 of a growing number of outlets in the NT of this very popular, high volume franchise operation and many local factors must be determined by the Manager in order to maximise business success. These include Budgeting, staffing ratios, recruitment, retention and training, product mix, local marketing materials and promotional activities as well as financial management of the operation at both a sales and profit level.
Budgets are determined by and managed by the Restaurant Manager.
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. 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 was provided with Profit and Loss Statements for FY 2017, a statement of Financial Viability by their Business Services and Accounting firm and ASIC Registration. The Tribunal also checked the status of the listed ABN. 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 questioned the visa applicant in depth to test his knowledge of the skills required to function in the business and engage in the management activities claimed by the nominating entity. The answers showed a clear and detailed knowledge in regards to the day-to-day required activities. The nominee demonstrated high-level leadership and management skills and acumen. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period.
The Tribunal has had regard to the signed Employment Agreement dated 16 November 2015 and 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.
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 annual salary of $76,300 plus a fully maintained vehicle and mobile telephone, resulting in a total remuneration package approximating $100,000 as appropriate and is reflective of his experience relevant to the nominated position. Additionally the Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence presented by the nominating entity prior to the hearing. The Tribunal reflects on the assessment that as a 10 year experienced McDonald’s employee, the nominee might easily be highly sought after by competing organisations. The Tribunal 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. 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. When the Tribunal questioned the parties regarding workplace conditions, it was evident that both parties were cognisant of workplace relations expectations. Furthermore, they were able to demonstrate an understanding of appropriate employee conditions as a way of retaining employees and subsequently provide quality business outcomes for their company. The Tribunal has reflected upon the fact that this industry employs a workforce, which operates in a competitive and transient environment where employees can easily more to a new position. 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, the length of the visa applicant’s employment, experience and qualifications and 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. The Tribunal notes an annual sales turnover for the group approximating $13m and the sales turnover for this restaurant in isolation is $7m with a gross profit in excess of $5m.
The Tribunal is satisfied 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 position of Retail Manager (General) ANZSCO 142111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position.
The Tribunal considered the tasks found in ANZSCO for this position and compared them to the job description provided by the applicant and the evidence provided at the hearing. A clear alignment between the 2 has been demonstrated.
The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because they were not satisfied that the tasks to be performed in the position correspond to the tasks specified in the relevant instrument. The Tribunal has had the benefit of additional information upon which to base its’ decision. It also observes that the delegate appears to be under incorrect assumptions as to how franchised businesses operate and the degree of management required. The Tribunal notes that the business owner has 5 restaurants and is about to open a 6^th and relies heavily upon the Retail Manager to run the business.
Detailed questioning was undertaken by the Tribunal of both the nominating entity and the visa applicant in order to arrive at a clear and comprehensive understanding of the information before it. The visa applicant was able to demonstrate to the Tribunal that he regularly undertakes the tasks of the nominated position and anticipates that he will continue to do so. The passion for his role was self-evident. The Tribunal is satisfied that the position located in suburban Darwin, NT, can properly be classified as a position for a Retail Manager (General), ANZSCO Skill Level 2. The Tribunal therefore finds that the nomination satisfies r.5.19(4)(h)(ii)(D) of the Regulations.
The Tribunal has had regard to Form 1404 issued by a RCB, dated 9 May 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).

[2018] AATA 5628

8 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Appeal