1421340 (Migration)

[2015] AATA 3012

1421340 (Migration) [2015] AATA 3012 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Q WEI & B Ying

CASE NUMBER:  1421340

DIBP REFERENCE(S):  BCC2014/2450327

MEMBER:Mary-Ann Cooper

DATE:2 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 02 July 2015 at 10:24am

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 Immigration on 10 December 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).

2. The applicant applied for approval on 26 September 2014. 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa) because she was not satisfied that the nominated position aligned with an occupation specified by the Minister.

4. On 18 May 2015 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting it to provide information in writing demonstrating that it met the requirements of r.2.72 of the Regulations. The invitation was sent by email to the nominated authorised recipient at the last address provided in connection with the review. It advised that, if the information was not provided in writing by 1 June 2015, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. No communication or any information was received from the applicant or its representative by the due date.

5. In these circumstances, where the review applicant has not provided the information requested in the time required, s.359C applies and pursuant to s.360(3), the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

6. On 16 June 2015 the Tribunal emailed the applicant’s authorised recipient, noting that it had not provided the information as requested in the s.359(2) invitation and advising it had lost the right to a hearing but that the Tribunal would allow until 26 June 2015 for the provision of any further information in support of its application. As at today’s date no further communication or information was provided.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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).

   Position must be genuine

9. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

10. The position nominated by the applicant in its application for approval is that of Café or Restaurant Manager. The applicant has not provided any additional information to the Tribunal in relation to the requirements of r.2.72, in particular in relation to a current description of the position and whether the position associated with the nominated occupation is genuine.

11. The Department’s file contains documents provided by the applicant including copies of the proposed employment contract with the nominee, a job description for the position, organisational chart,  advertisements for similar positions, PAYG summaries for the nominee for 2012/13 and 2013/14 and a single page submission from the applicant’s director.

12. As indicated above, the applicant stated in the application that the nominated position was for a Café or Restaurant Manager. The job description very generally reflects the tasks outlined in ANZSCO for the position, although the Tribunal is unable to identify anything in the documentation provided to the Department which indicates the relevant ANZSCO code (ANZSCO 141111).  In a context in which very little supporting information has been provided, the Tribunal has had regard to the range of tasks of the occupation of Café and Restaurant Manager set out in the ANZSCO description of the occupation.

13. ANZSCO states that the occupation  “organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.” Indicative tasks are listed as follows:

    Tasks Include:

    oplanning menus in consultation with Chefs

    oplanning and organising special functions

    oarranging the purchasing and pricing of goods according to budget

    omaintaining records of stock levels and financial transactions

    oensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

    oconferring with customers to assess their satisfaction with meals and service

    oselecting, training and supervising waiting and kitchen staff

    o

    may take reservations, greet guests and assist in taking orders

    
    
    

14. The job description provided to the Department provides a general description of the position, stating that it organises and controls the operations of Donut King to “provide breakfast, meal and catering services and control the standard of customer service and staffs (sic) training.” Specifically it states the duties to be:

    ·     serves as the lead customer service contact for members at the café including taking reservations, greeting customers and assisting in taking orders, assess customer’s satisfaction with food and service.

    ·     Plan and organise special catering.

    ·     Responsible for keeping café and dining facilities clean.

    ·     Manage and motivate team member.

    ·     Provide ongoing selection training and supervision of team members.

    ·     Manage vendors and maintain inventory, order supplies.

    ·     Monitoring quality at all stages of preparation of food and services.

    ·     Act as liaison between the café and other food departments communicating relevant information to the café staff as needed.

15. The Tribunal notes that the organisation chart provided indicates that the business comprises the director, 2 casual customer service staff (although three names are listed) and 1 part-time Café Manager (although two names are listed, one of which is the nominee). The covering letter sent with the documents relevantly states that the nominee has been working with the nominator as a casual café manager since 2012 and in order to “keep her working on a long term base” that it would like to sponsor her “on a full time base.”  This information appears to be inconsistent with the organisation chart which indicates that there is one Café Manager role which is part-time. The Tribunal has also considered whether it may be a fulltime role and two people share it on a part-time basis. Given the applicant’s failure to respond to the s.359(2) request for information, and its consequent loss of its hearing right, the Tribunal has been unable to question it further about the role’s requirements in this regard. The Tribunal also notes that there is no information on the Department’s file regarding the financial position of the business such that would inform the Tribunal whether it has grown so as to now require a fulltime Café or Restaurant Manager. In relation to the applicant’s turnover and financial position, no annual profit and loss or balance sheet information was provided so it is not possible to reliably infer the current size of the business and whether or not it is an expanding enterprise. As noted above, the organisation chart provided to the Department shows a small organisation comprising 3 positions (part-time and casual) plus that of the Director. 

16. Overall the Tribunal can find little in the materials on the Department’s file which demonstrates the applicant’s need for a Café or Restaurant Manager. In particular the Tribunal notes that the business is a franchised fast food business which operates in a shopping mall food court. Its website indicates that it offers donuts, hot dogs, ice cream, drinks and cakes.[1] On this basis the Tribunal is unconvinced by the claim in the position description that the nominated position is the  “lead customer service contact for members at the café including taking reservations, greeting customers and assisting in taking orders” .  As far as the Tribunal can ascertain, seating is in a food court and there is nothing to support the claim that  the position takes reservations, greets customers (other than at the service counter) or that table service is provided. Further, the Tribunal can discern no evidence that supports the claim in the position description that any catering is undertaken or that any management or motivation or training of team members is required.

    [1] accessed 30 June 2015

17. There is also little in the role’s description which reflects any of the indicative tasks in ANZSCO for the position, such as planning menus in consultation with chefs, planning and organising special functions, arranging the purchasing and pricing of goods according to budget, maintaining records of stock levels and financial transactions , and selecting, training and supervising  waiting and kitchen staff.

18. Overall the Tribunal considers that the position and its tasks have been significantly conflated and do not accurately represent the management needs of a franchised fast food/casual dining business operating in a food hall at a shopping centre. The Tribunal concurs with the delegate’s observation in her decision, a copy of which was provided with the review application, that the work undertaken by managers of fast food and fast casual dining outlets more closely aligns with the occupation of Retail Supervisor (ANZSCO 621511) which is not an occupation specified in the relevant instrument.

19. On the basis of the above documents and information, the Tribunal is not satisfied that there is sufficient evidence before it to form a reliable basis for a finding that the nominated position of a fulltime Café or Restaurant Manager is genuine. Given the indication of a relatively small scale business, and the scant details provided to the Department about the position, the Tribunal is not satisfied that it genuinely encompasses the range and skill level of duties described in the ANZSCO occupation of Café and Restaurant Manager. As indicated above, the applicant has failed to provide any additional information to the Tribunal in relation to the requirements of r.2.72. As it had lost its entitlement to a hearing, the Tribunal was not able to take evidence from the applicant as to the genuineness of the position associated with the nominated occupation.

20. Therefore, at the time of decision, the Tribunal finds there is insufficient recent evidence of the nature and operations of the applicant to be satisfied as to the genuineness of the nominated position.

21. Therefore, having considered all the information before it, the Tribunal is not satisfied that the position associated with the nominated occupation of Café and Restaurant Manager (ANZSCO 141111) is genuine.

22. For these reasons the requirements of r.2.72(10)(f) are not met, and it follows, the requirements of r.2.72(10) as a whole are not satisfied.

23. As the provisions of r.2.72 are cumulative and the applicant is required to meet all relevant subparagraphs (s.140GB(2)), it follows that the Tribunal finds that the applicant does not meet the applicable prescribed criteria for the nomination to be approved.

    CONCLUSION

24. For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for approval of the nomination. Accordingly, the decision under review must be affirmed.

    DECISION

25. The Tribunal affirms the decision not to approve the nomination.

    Mary-Ann Cooper
    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.