1419238 (Migration)

1419238 (Migration) [2015] AATA 3193 (21 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Maramex Pty Ltd
CASE NUMBER:  1419238
DIBP REFERENCE(S):  BCC2013/985744
MEMBER:Don Smyth
DATE:21 July 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the nomination is approved.
Statement made on 21 July 2015 at 3:06pm

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 18 November 2014 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 25 June 2013. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.
On 8 October 2013, a delegate decided not to approve the nomination on the basis that the requirements of r.2.72(10)(aa) were not met. The delegate found that Guzman y Gomez Fortitude Valley was a “fast casual dining outlet” and, applying Departmental policy, that the occupation did not correspond to an occupation specified in the relevant instrument. The applicant sought review of this decision by the Migration Review Tribunal (the MRT). On 15 September 2014, the MRT (differently constituted) made a decision to set aside the decision not to approve the nomination application and substitute a decision that the nomination was approved. With regard to r.2.72(10)(aa), the Tribunal noted that the representative had provided a lengthy letter from the managing director of the applicant with reasons as to why the applicant was a “casual dining” restaurant and not a fast food or takeaway food service. It noted that the applicant had also provided photographs of the Fortitude Valley restaurant, the restaurant floor plan, the restaurant liquor licence and the food business licence issued to the applicant as a café/restaurant. The Tribunal was satisfied that the applicant was not operating a fast food or takeaway food service. The present Tribunal has before it the file relating to this earlier review application (1316229).
The Tribunal notes that, in its decision of 15 September 2014, the MRT (differently constituted) found that the applicant was an approved standard business sponsor. It would appear that this finding was flawed. The evidence before the Tribunal indicates that the applicant was approved as a standard business sponsor from 16 August 2011 until 16 August 2014. A new application lodged on 8 September 2014 was not approved until 17 September 2014.
On 18 November 2014, the delegate made a further decision not to approve the nomination. The decision was made on the basis that the applicant had ceased to be a standard business sponsor on 16 August 2014. The delegate was not satisfied that the applicant met the requirements of r.2.72(4).
On 25 November 2014, the applicant applied for review of the delegate’s decision of 18 November 2014. It is this review application that is now before the Tribunal.
The Tribunal notes at the outset that the power of the delegate to make a decision refusing the nomination appears somewhat questionable. The Tribunal notes that the Act gives the Tribunal power to set aside the delegate’s decision and substitute a new decision: s.349(2)(d). If the Tribunal sets aside the decision and substitutes a new decision, the decision as substituted is taken to be a decision of the Minister: s.349(3). On 15 September 2014, the MRT had made a decision to set aside the decision not to approve the nomination application and substitute a decision that the nomination was approved. It is not clear on what basis the delegate then revisited the matter and made a decision to refuse to approve the nomination. The Tribunal notes also that, while the MRT decision of 15 September 2014 may have been flawed in finding that the applicant was an approved sponsor at that time, the delegate’s decision of 18 November 2014 appears equally flawed in finding that there was no sponsorship approval. As discussed below, the evidence indicates that the applicant had approval as a standard business sponsor from 17 September 2014.
Notwithstanding these concerns, the Tribunal is not a court. It has before it a decision of a delegate to refuse to approve the nomination and will proceed to consider the substance of the matter.
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 the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Summary of Claims and Evidence
The nomination form listed the nominated occupation as “Cook”. It provided information in relation to the nominee’s responsibilities, duties and qualifications. The Department was provided with a copy of an Employment Contract relating to employment of the nominee at Guzman y Gomez Fortitude Valley.
The applicant’s representative made a number of written submissions to the Department. These submissions addressed a range of matters including the base salary. The Department was provided with copies of a number of job advertisements. In her written submissions to the Department, the representative acknowledged that legislative instrument IMMI 13/066 specifically excluded the nomination of Cook in fast food and/or takeaway services. It was acknowledged that Guzman y Gomez operate as a franchise, offer limited menus, offer speed and convenience, and do not employ chefs. However, it was submitted that there were a number of aspects which distinguished Guzman y Gomez from fast food outlets. In particular, they delivered food to the table, had a liquor licence, had independent seating for patrons, were classified as restaurants by other government/quasi government authorities, were considered to do “cooking” on the premises, received fresh produce on the site and did not do any cooking in a central location. It was submitted that Guzman y Gomez was not a fast food or takeaway food service.
Further submissions have been made to the Tribunal. These consisted of two large folders relating to this and a number of related applications.
In the written submissions to the Tribunal, it was submitted that an earlier sponsorship approval had ceased on 16 August 2014 but that there had been a further sponsorship approval on 17 September 2014.
It was submitted that the issue of whether the applicant was operating as a fast food outlet had been reviewed by the Tribunal on numerous occasions and that the MRT had found on four occasions that the applicant was operating as a restaurant for the purposes of the 457 scheme. The Tribunal was referred to the decisions in MRT file numbers 1318262, 1309160, 1306149 and 1316229. The Tribunal was provided with copies of these decisions all of which relate to Maramex Pty Ltd. In 1316229 and 1318262, the Tribunal (differently constituted) set aside decisions not to approve nomination applications and substituted a decision that the nomination is approved. In 1309160 and 1306149, the Tribunal (again differently constituted) remitted applications for Subclass 457 visas with a direction that the applicant satisfied cl.457.223(4)(d). In 1309160, the Tribunal accepted that Guzman y Gomez in Albert Street, Brisbane was properly regarded as a restaurant and that it required an additional Restaurant Manager. In 1306149, it was accepted that the applicant’s intention to perform the occupation of Restaurant Manager at the Guzman y Gomez restaurant at Eagle Street Pier in Brisbane was genuine and that the position associated with the nominated occupation was genuine. The Tribunal was provided with a folder of evidence and submissions in relation to those files.
It was submitted that descriptions of ABS/ANZSIC were the industry source regarding the classification of establishments. The submissions referred to an e-mail from the ABS concerning these classifications.
It was submitted that the liquor licensing of Guzman y Gomez establishments was pertinent in their classification as a restaurant. It was submitted that the Wintergarden establishment did not have a liquor licence. All the other restaurants, apart from the restaurant at St Lucia, did have such a licence. The Tribunal was provided with a copy of a letter from Matthew James, Director of Liquor & Gaming Specialists located at Fortitude Valley. It was submitted that, although takeaway was an option for patrons, it was not the predominant activity. The submissions stressed that, unlike fast food outlets, the food was cooked on the premises and there was no shipping of standardised food to each restaurant from a central location.
The Tribunal was provided with a table addressing the various requirements relating to the nominee, Mr Rizalito Socan.
The Tribunal was provided with a number of additional documents, including the following:
·     Copies of e-mail correspondence between the applicant’s representative and Ms Josette Loomes of the Standards and Classifications Section of the ABS. In her e-mails, the representative provided a description of the operation of the “Guzman y Gomez Mexican Restaurants”. The response from Ms Loomes indicated that, if establishments were providing space, chairs/tables, wait staff and any other infrastructure or equipment required for patrons to consume food on their premises, then Class 4511 Cafes and Restaurants was the appropriate classification. The response stated that, as Guzman y Gomez establishments operated separately as franchises, it was acceptable to classify them according to their individual operations. It was submitted that this feedback supported the classification of Guzman y Gomez restaurants (except for Wintergarden) as restaurants.
·     A copy of a letter from Matthew Jones, Director of “Liquor & Gaming Specialists”, a liquor and gaming licensing consultancy in Fortitude Valley. This letter stated that all of the liquor licences held by the applicant were in the “meals and restaurant” category and reflected a business with a principal activity of meals prepared, served and consumed on the licensed premises. It stated that the more regular terminology was a “restaurant licence”. Mr James stated that, in their experience, Guzman y Gomez operations as conducted by the applicant were clearly restaurants as that term was understood generally and in accordance with liquor licensing law and practice.
·     A letter of 5 June 2015 from Humberto Maradiegue, Managing Director of Guzman y Gomez Queensland. Mr Maradiegue provided information concerning the size of, and number of seats in, a number of new establishments.
·     A copy of the nominee’s employment contract.
·     Copies of advertisements for a range of positions, including Café/Restaurant Manager positions and Cook positions, and Payroll Advice for a number of employees of Maramex Pty Ltd.
·     Records of liquor licences and Food Business Licences, including a Food Business Licence for the Fortitude Valley establishment which describes the activity as Café/Restaurant.
As noted above, the Tribunal was also provided with a folder containing submissions made in relation to a number of earlier Tribunal applications. These included submissions made to the MRT (differently constituted) in relation to the earlier refusal of the nomination relating to Mr Socan. The submissions addressed numerous matters, including ABS classifications and Departmental policy. It was submitted that Guzman y Gomez is a fast paced casual dining restaurant. The submissions included an outline of the applicant’s operations and an organisational chart. The submissions described matters such as the seating arrangements and menu. It was submitted that the Guzman y Gomez restaurants had the appearance of a Casual Restaurant. The restaurants mainly engaged in providing food and beverage services for consumption on the premises. It was submitted that this was consistent with the definition of “Cafes and Restaurants” as prescribed by ANZSIC. It was submitted that the seating facilities at Guzman y Gomez restaurants were not limited. The submissions outlined the menus. It was submitted that the meals required on the premises cooking and that no cooking was done at a central site. Copies of the menus were submitted as were photographs of fresh produce at a Guzman y Gomez restaurant. It was noted that the restaurant worked with fresh meat. The submissions addressed the classification of Maramex and its employees by other government and quasi government bodies such as Trades Recognition Australia, the Brisbane City Council, the Queensland Office of Liquor and Gaming Regulation and training institutes. The submissions also addressed the ANZSCO descriptions of various occupations, including the occupations of Cook and Fast Food Cook. It was submitted that the duties of Cook according to ANZSCO correlated to the duties of a Cook at Guzman y Gomez. It was submitted that, while Guzman y Gomez were not a fine dining restaurant or a family style restaurant, they were not a fast food outlet such as Subways and Dominos. It was submitted that they were a “fast paced casual dining restaurant”. They predominantly provided food and beverages for consumption on the premises. Their premises provided substantial seating. Meals were taken to the table by wait staff. The submissions highlighted a number of distinguishing features.
Also submitted was a letter, dated 29 July 2014, from Mr Humberto Maradiegue, the managing director of the applicant. In his letter, Mr Maradiegue described the restaurants and their manner of operation. He provided details concerning the size and seating at each restaurant. With regard to the Fortitude Valley establishment, he indicated that it was 280 square metres in size and provided seating for 150. Mr Maradiegue also described matters such as the cooking process and arrangements for training. He described the duties of the Cook position.
The materials submitted included copies of the Guzman y Gomez franchise agreement, photographs of the Fortitude Valley premises, a number of seating plans, documentation relating to training and a liquor licence for the Fortitude Valley premises.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal is satisfied that the applicant company has nominated an occupation under s.140GB (r.2.73(1A)(a)) and has identified the person proposed to work in the occupation (r.2.73(1A)(b)).
The Tribunal finds that the applicant has made the application in accordance with the approved form 1196 (Internet) and paid the fee prescribed at the time of application (r.2.73(2), (3),(5)&(9)).
The Tribunal is satisfied that the applicant has provided the necessary certifications in r.2.72(10)(e). It finds that the requirements of r.2.73(4A)(b) are met.
Regulation 2.73(4A)(a) requires that the applicant must provide, as part of the nomination, the information mentioned in subregulations 2.72(5) and (8A). Subregulation 2.72(5) relates to the identity of the visa holder or proposed visa holder who will work in the nominated occupation. The nomination identifies the proposed visa holder as Rizalito Padilla Socan. Subregulation 2.72(8A) relevantly requires provision of the name of the occupation and the corresponding 6-digit ANZSCO code (if there is an ANZSCO code for the nominated occupation), and the location or locations at which the nominated occupation is to be carried out. The nomination identifies the occupation as Cook and the ANZSCO code as 351411. It identifies the address in Fortitude Valley at which the nominated occupation is to be carried out. The Tribunal finds that the requirements of r.2.72(5) and (8A) are satisfied. It follows that the requirements of r.2.73(4A)(a) are met.
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The records available to the Tribunal indicate that the applicant was approved by the Department as a standard business sponsor from 17 September 2014 to 17 September 2017. The Tribunal has been provided with documentation evidencing the current approval of the applicant as a standard business sponsor. In particular, it was provided with a copy of a Sponsorship Approval Notice issued to the applicant on 17 September 2014. This accords with the Department’s electronic records. The Tribunal is satisfied that the applicant is a standard business sponsor. The requirements of r.2.72(4) are met. The Tribunal notes that it appears from the material before the Tribunal that this would also have been the case at the time when the delegate refused the nomination application for the second time on 18 November 2014.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
In the nomination application the applicant has identified Rizalito Padilla Socan as the proposed applicant for the visa who will work in the nominated occupation.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one; and
·the location(s) at which the nominated occupation is to be carried out.
The applicant has indicated on the nomination application form that the nominated occupation is Cook and that the relevant code 351411. As noted above, the applicant has also provided the required information as to the location at which the nominated occupation is to be carried out.
For these reasons the requirements of r.2.72(8A) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57(2) and (3).
There is nothing before the Tribunal to suggest that there is any adverse information known about the applicant or a person associated with the applicant. The requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa), as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 15/092. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

As discussed above, this is the second delegate’s decision in respect of which the applicant has sought review. The initial refusal decision was based on a finding that the requirements of r.2.72(10)(aa) were not satisfied. The delegate noted that the relevant instrument specified that the occupations of Cook, Chef and Café or Restaurant Manager excluded positions in fast food or takeaway food service for a nomination or a visa application for a Subclass 457 visa (a similar exclusion is contained in the current instrument IMMI 15/092). The delegate found that Guzman y Gomez Fortitude Valley was a “fast casual dining outlet” and that this was considered to be a fast food outlet under Departmental policy. The delegate found that this occupation did not correspond to an occupation specified in the relevant instrument.
The Tribunal notes that the delegate’s decision of 8 October 2013 has already been reviewed by the MRT (differently constituted). The MRT found on 15 September 2014 that all the criteria for approval of the nomination, including cl.2.72(10)(aa) were satisfied. The Tribunal’s attention has also been drawn to other decisions of a similar nature. Nevertheless, the Tribunal must turn its own mind to this issue.
In making its findings the Tribunal has had regard to the Departmental policy in PAM3, although it is not bound by the policy. It notes that the policy refers to what are termed “fast casual dining outlets”, identifies a number of factors typically associated with such outlets and states that such outlets are considered to be fast food businesses. However, the considerations in matters such as these may be finely balanced. Ultimately, it is necessary to consider carefully the nature of the particular business in question.
The Tribunal has considered whether the position is one in a fast food or takeaway food service. There are a number of competing considerations in this regard. It is not disputed that Guzman y Gomez in Fortitude Valley is part of a franchise. The Tribunal has been provided with a copy of the franchise agreement. The evidence indicates that the outlets in the franchise offer a standardised menu of dishes. The evidence, including the letter from Mr Maradiegue, also indicates that customers place orders at the counter, pay at the counter and are provided with a table number. Customers have the option to dine in or take away. Such factors might be considered consistent with a fast food or takeaway food service. However, as noted in the submissions that have been made, many establishments that might legitimately be considered restaurants do offer takeaway as well as dine in options. As noted by Mr Maradiegue, establishments such as taverns or clubs may provide for food to be ordered and paid for at the counter. The Tribunal notes that the Department has also drawn attention to instances in which Guzman y Gomez has been referred to as a fast food outlet. For instance, the Department drew to the applicant’s attention a media release of December 2014 from Diabetes Queensland. The Tribunal has had regard to this in making its findings.
The applicant’s representative has made extensive submissions. The submissions highlight a number of features of Guzman y Gomez. These include that the actual premises provide a floor space and seating for patrons to consume their meals on the premises. The cooking is done on the premises. It has been submitted that the duties of the Restaurant Managers and Cooks employed by Guzman y Gomez are more in line with the ANZSCO occupations of Restaurant Managers and Cooks than Retail Managers and Fast Food Cooks. Attention has been drawn to the classification of Guzman y Gomez as a Restaurant by the Queensland Office of Gaming and Regulation in the issuing of their liquor licences and to the classification of Guzman y Gomez as a Restaurant by the Brisbane City Council in the issuing of their Business Food licences. It has been submitted that work experience as a Cook at Guzman y Gomez restaurants has been accepted for the purposes of skills assessment by Trades Recognition Australia. Reference has been made to acceptance as an approved employer under a Government Funded Apprenticeship Scheme and the subsequent employment of five apprentices.
The Tribunal accepts that there a number of features of Guzman y Gomez at Fortitude Valley that weigh against a conclusion that it is a fast food or takeaway food service. It is apparent from the floor plans, photographs and other materials that have been provided that the outlet is large in size and offers extensive seating for customers to consume their meals on the premises. The Tribunal accepts that, while meals are ordered at the counter, they are delivered to customers at their tables by staff. It has had regard to all the evidence as to the manner in which the food is prepared, including the evidence of Mr Maradiegue. It accepts that Guzman y Gomez employs cooks and that the cooking, including cooking of the meat, is done onsite.
Evidence has been provided that Guzman y Gomez has been identified as an appropriate employer for the purposes of apprenticeships in a Certificate III in Commercial Cookery and Hospitality Operations. The Tribunal accepts on the evidence before it that the Fortitude Valley outlet has been recognised as eligible for a food licence as a café/restaurant. The Tribunal has considered the evidence in relation to the liquor licence that has been granted to Guzman y Gomez at Fortitude Valley. It attaches some weight to the evidence of Mr Jones from Liquor and Gaming Specialists. Mr Jones indicated that his firm had acted for the applicant in relation to applications for liquor licences and had assisted with liquor licensing issues at Fortitude Valley. The Tribunal notes that Mr Jones indicated that all of the liquor licences held by the applicant are in the meals or restaurant category, and reflect a business with a principal activity of the preparation, service and consumption of meals on licensed premises. Mr Jones stated that it is not possible under the legislation for a liquor licence to be obtained where the principal activity of the business is the sale of food for consumption away from the premises. The Tribunal is not bound by classifications made by other bodies. Nevertheless, particularly having regard to the evidence of Mr Jones, it does attach some weight to the fact that the applicant has been issued with a liquor licence for the relevant premises. The Tribunal has also considered the material from Ms Loomes of the ABS. It notes that Ms Loomes indicated that, if establishments were providing space, chairs/tables, wait staff and other infrastructure for patrons to consume food on their premises, then ANZSIC Class 4511 Cafes and Restaurants would be a more appropriate classification than ANZSIC Class 4512 Takeaway Food Services. The Tribunal accepts that the nature of the Guzman y Gomez premises is more consistent with ANZSIC Class 4511. While this classification is intended for other purposes and is by no means determinative, the Tribunal attaches some weight to this nevertheless.
The Tribunal notes that evidence has been provided to the effect that the Guzman y Gomez outlet at the Wintergarden food court operates in a different manner. While it may be that this is a fast food or takeaway food service, the Tribunal is considering a different outlet at Fortitude Valley.
Having regard to all the evidence before it, the Tribunal concludes that the evidence ultimately weighs in favour of a decision that Guzman y Gomez at Fortitude Valley is not a fast food or takeaway food service. The Tribunal places considerable weight on matters such as the size and scale of the dine in floor space and the evidence concerning the liquor licence for the premises. It follows that the exclusion in IMMI 15/092 relating to positions in fast food or takeaway food service does not apply. The Tribunal is satisfied that the nominated occupation corresponds to the occupation of Cook as specified in instrument IMMI 15/092. For these reasons the requirements of r.2.72(10)(aa) are met.
In the present case, there is no requirement for the nomination to be supported by a specified organisation. The requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in the relevant instrument: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10)(AB), which sets the annual earnings figure at $250,000. This exception does not apply.
As recorded in the MRT decision in 1316229, the applicant provided evidence that all its cooks (including Australian employees) were employed under the same terms and conditions set out in the provided employment contract and that the nominated position had a per annum base rate of pay and guaranteed earnings of $54,000. The Tribunal is satisfied on the information before it that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. The requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).
Having regard to the evidence before it, the Tribunal is satisfied that the relevant base rate of pay exceeds the current TSMIT which is specified at $53,900.
For these reasons the requirements of r.2.72(10)(cc) are met.
Requisite certification
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). The certification relates to the tasks of the position, the nominated occupation and the qualifications and experience of the nominee.
The applicant has made the relevant certifications in the nomination application and on this basis the Tribunal is satisfied that the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The Tribunal has been provided with extensive evidence of the operations of the applicant at the Guzman y Gomez restaurant in Fortitude Valley. These include menus, photographs, licences and a letter from the applicant’s managing director. As discussed above, the Tribunal accepts that the applicant employs cooks to prepare food on the premises. The Tribunal is satisfied that the position associated with the nominated occupation is genuine. The requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister. The Tribunal has been provided with a copy of an employment contract for the nominee. The Tribunal is satisfied that the applicant will engage the nominee only as an employee under a written contract of employment.
For these reasons the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). The applicant is not a party to a work agreement. The requirements of r.2.72(11) and (12) are not applicable.
CONCLUSIONS
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Don Smyth
Senior Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
Note   The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2015] AATA 3193

21 July 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal