The Trustee for ABF Family Trust (Migration) [2023] AATA 209 (24 January 2023)

Last Updated: 21 February 2023

The Trustee for ABF Family Trust (Migration) [2023] AATA 209 (24 January 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: The Trustee for ABF Family Trust

REPRESENTATIVE: Mr Jiang Liu

CASE NUMBER: 1920455

HOME AFFAIRS REFERENCE(S): BCC2017/4543414

MEMBER: Ian Berry

DATE: 24 January 2023

PLACE OF DECISION: Brisbane

DECISION: The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 24 January 2023 at 1:45pm

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – retail manager – application is compliant –– 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 – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– tasks and duties of the manager are more complex than that of a supervisor – decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (Department) on 12 July 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) (Regulations).
2. The applicant applied for approval on 30 November 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).
3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
4. 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 nominated position was more in line with a retail supervisor than a retail manager by reason of the tasks to be performed.
5. The applicant appeared before the Tribunal on 23 November 2022 to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s director Mr A Fu and the nominee Mr K Yu. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
7. 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

8. 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.

The application is compliant: reg 5.19(4)(a)

9. 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 an identified person as a paid employee to work in the position under their direct control.
10. The nomination application (nomination) was provided to the Department on the correct form and was accompanied by the prescribed fee.
11. Page 7 of the nomination confirmed the applicant certifying that it has not engaged in conduct concerning its nomination that constituted a contravention of sec 245AR(1). Further, the nomination identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control.
12. Accordingly, the requirement in reg 5.19(4)(a) is met.

Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

13. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. The applicant provided a substantial amount of information supporting the business is lawful operation and of the applicant directly operating the business. The trust deed confirms the authority of the trustee to operate the business. Both financial reports and trust taxation returns provided to the ATO the business is viable, active and lawfully operating a business in Australia.
14. Accordingly, the requirement in reg 5.19(4)(b) is met.

Position is not labour-hire: reg 5.19(4)(c)

15. 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.
16. From the evidence provided by the applicant, it is clear the business does not operate as a labour hire business or involve itself in labour hire activities and does not hire its labour to other unrelated businesses.
17. Accordingly, the requirement in reg 5.19(4)(c) does not apply to this applicant.

Term of employment of the visa holder: reg 5.19(4)(d)

18. 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.
19. The nomination confirms the applicant employing the identified nominee in the nominated position for at least 2 years in a full-time position and on terms and conditions of employment that do not expressly exclude an extension. The financial information includes details relating to salaries and wages which in 2022 was over $500,000. The employment agreement dated 31 August 2022 identifies the nominee Mr Kaiwen Yu receiving remuneration of $54,000 plus the superannuation guarantee contribution of 10.5% making a total package of $59,670 per annum. The employment agreement is to operate his 187 visa. Moreover, clause 6 of the employment agreement specifies the employee be employed for at least 2-year period. There is no provision excluding the possibility of an extension of the employment agreement.
20. Accordingly, the requirement in reg 5.19(4)(d) is met.

No less favourable terms and conditions of employment: reg 5.19(4)(e)

21. 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.
22. The Tribunal finds that the terms and conditions applicable to the position and the identified nominee will be no less favourable than those that are provided to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location. The applicant owns and operates two franchise Subway outlets, with the Nerang outlet being the more recently purchased business. The applicant states that it employs 13 Australian citizens at Nerang. The applicant provided information supporting the employment conditions of the nominee including the payslips of an employee performing equivalent work to that of the nominee who is the manager at Subway at Robina. This employee is employed full-time on an annual salary of $48,048. This manager received overtime hours payments (both at time-and-one-half and double-time based on the hourly rate of $28), making the salary package around $55,000 the amount now paid to the identified nominee.
23. Accordingly, the requirements of reg 5.19(4)(e) are met.

No adverse information known to Immigration: reg 5.19(4)(f)

24. 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.
25. There is no information known to immigration, ascertain from the departmental file, that shows the applicant has adverse information about it or any person associated with the applicant
26. Accordingly, the requirements of reg 5.19(4)(f) are met.

Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

27. 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.
28. Information from either the Department or Tribunal as to the applicant having anything other than a satisfactory record of compliance with workplace relations laws in the locations in which it operates as business and employs staff.
29. Accordingly, the requirements of reg 5.19(4)(g) are met.

Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

30. Regulation 5.19(4)(h) contains several 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 (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
    • the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.
31. The applicant’s Subway franchise business is in Nerang which is a regional area as designated in IMMI 17/059. The business was purchased by the applicant as a going concern and presently employs 13 Australian citizens and the identified nominee Mr Yu. The financial report for the year ending 30 June 2022 shows the applicant earning a gross income of $1,463,484. The net profit before taxation amounted to $490,027.33 with expenses totalling $973,456.47 of which salaries and wages totalled $524,217.58 and superannuation contributions of $34,891.03. Notably the applicant spent $35,054.43 on advertising.
32. The delegate’s reasons for refusing the application is based on the perception the nominee’s duties and tasks are more in line with a supervisory role, with some managerial tasks, and the role of a retail manager. Evidence was provided by the applicant consisted of:
    • Subway employee evaluation sheet;
    • Food temperature recording log dated 15 November 2022;
    • Cleaning checklist; and
    • Control sheet and combo report.
33. In more detail, the food temperature recording and action log consists of a daily temperature reading both in the morning and afternoon for each day over a list of 32 ingredients consisting of vegetable cheeses and proteins. Temperature readings were also necessary in all the storage facilities including refrigerators and freezers and walk-in cooler/chiller.
34. The control sheet and combo reports are more complex as they consist of cash control stock-take labour cost sales itemisation and unit itemisation. The manager is also required to conduct an employee performance and evaluation sheet concerning food safety and cross contamination. A cross contamination checklist consists of the areas and equipment where checks need to be constantly made to ensure there is no contamination. The combo report consists of information which must be provided to the franchisor, it would seem and provides monthly volume information, weekly key indicators for the restaurant and counter sales. Other combination reports concern unit sales information, year to date sales and debt cash card use. Also, the restaurant cleaning and sanitation checklist needs to be completed and refers to the employee certifying according to a list the cleaning and sanitising being carried out throughout the day from 7 AM through to 9 PM, every day. Understandably, there is a checklist for Subway of the Covid 19 daily health screen log. All of which is managed by the nominee.
35. The applicant’s submission of 25 November 2022 was received after the hearing and pursuant to an invitation by the Tribunal of the tasks and duties which has in part been substantiated by the documentary evidence:
    • Setting the overall direction of the business including working with the owner in setting up the business budget.
    • Seeking more business opportunities beneficial to the organisation for which the expenses illustrated and expenditure of at least $35,000 per annum on advertising.
    • Overseeing the activities of the business, managing business resources as well as establishing strategic goals to facilitate achievement within the organisation.
    • Managing staff, controlling stock and pricing.
    • Complying with occupational health and safety regulations.
    • Maintaining statistical and financial records.
    • Recruiting, training and supervised staff.
    • Dealing with customer service issues.
36. The sales supervisor in ANZSCO has a skill level 4 while the manager’s position is a skill level 2. The tasks involved in the duties of a retail supervisor are:
    • ensuring that customers receive prompt service and quality goods and services
    • responding to customers' inquiries and complaints about goods and services
    • planning and preparing work schedules and assigning staff to specific duties
    • interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances
    • instructing staff on how to handle difficult and complicated sales procedures
    • examining returned goods and deciding on appropriate action
    • taking inventory of goods for sale and ordering new stock
    • ensuring that goods and services are correctly priced and displayed
    • ensuring safety and security procedures are enforced
37. The Minister’s delegate did not have detailed information and evidence as to the tasks and duties of the office manager. The Tribunal is satisfied and finds the tasks and duties of the manager are more complex than that of a supervisor.
38. Also, the Tribunal is satisfied and finds that there is a genuine need for the applicant to employ a person in the position of Retail Manager (General). There is also the genuine need for the applicant to employ the identified nominee as a person with experience and qualifications to fulfil the role.
39. The nominee has a Diploma of Leadership and Management at IIBM^[1]. He has a Bachelor Degree in Athletic Training (attained in China) and a Diploma of Interpreting, attained at SIIT^[2]. His employment history consists of working as a customer service manager from 2011 to 2014 and has a competency English test result.
40. Nerang is a regional area situated in the hinterland of the Gold Coast region.
41. The applicant’s evidence is the Business placed an Advertisement in the Courier Mail newspaper which did not result in attracting candidates. An online Recruitment Advertisement on ‘Seek.com’, 2 candidates applied and the nominee. The nominee had been working with the business prior to applying for the job. At advertisement was also placed in the window of the Subway store. The candidates who applied was through the recruitment site Seek.com. the results of the candidates were:
    • The first candidate lived at Surfers Paradise who had completed grade 12 and was a Cert II barista in 2014 and experience consisted of waitressing food and beverage preparation cleaning duties front counter service drive-through booth and food server. That candidate was also involved in a pie business at Burleigh Heads consisting of the tasks previously stated and lastly the Burleigh Surf club doing by work, barista and food serving, cleaning and function organiser among other similar duties. Also employed in addressing and became an apprentice and later telemarketing sales. That experience was from 2016 through to 2021.
    • The second candidate’s resume had experience in ironing, resort cleaning services, at a bakery, and a poultry shop. The candidate did not present any information or evidence as to any qualification.
42. The Queensland Chamber of Commerce and Industry trading as ‘Chamber of Commerce & Industry Queensland’ in its role as a Regional Certifying Body provided an advice that it was satisfied that the identified person would be paid to at least the annual market salary rate for the occupation; there was a genuine need for the identified person to be employed in the position under the direct control of the nominator and that the position could not be filled by an Australian citizen or an Australian permanent resident living in the local area where the business is located. The Regional Certifying Body provided a report supporting its determination with documentation upon which it relied on being satisfied.
43. Accordingly, the requirements of reg 5.19(4)(h) are met.
44. 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

45. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Ian Berry
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval 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 an identified person, as 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) all 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;

(AA) there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

(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 the person identified under subparagraph (a)(ii), as 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).

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[1] International Institute of Business and Management
^[2] Sydney Institute of Interpreting and Translating