1503290 (Migration)

1503290 (Migration) [2015] AATA 3304 (17 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MICHAEL & EVA PTY LTD ATF VIVIENS FAMILY TRUST
CASE NUMBER:  1503290
DIBP REFERENCE(S):  BCC2014/3325155
MEMBER:Steve Georgiadis
DATE:17 August 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 17 August 2015 at 5:55pm

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 17 February 2015 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 4 December 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl.2.72(10)(f) as the delegate was not satisfied that the position associated with the nominated occupation of Chef is genuine.
The applicant appeared before the Tribunal on 17 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Vivian Zhang, Director of MICHAEL & EVA PTY LTD ATF VIVIENS FAMILY TRUST (trading as Ant and Elephant). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The applicant operates a café / restaurant business trading as Ant and Elephant out of two separate locations in South Australia in the northern suburbs of Modbury and Elisabeth. The applicant submits that the business sells ‘moderately priced food to an upscale casual dining market.’ The venues ‘feature brewed coffee and espresso-based beverages, granita ices, fruit smoothies and juices, and other beverages typically associated with a coffee shop.’ Both locations are also in the process of being considered for a liquor license although at the time of this decision this has not yet been granted to either location. The applicant submits that a desert bar ‘serves a range of freshly prepared deserts’ as well as ‘baked goods associated with breakfast.’ Meal offerings include both takeaway and dining menu selections and both locations accommodate in-house dining. At the hearing Ms Zhang told the Tribunal that the Elisabeth location has seating for approximately 70 persons and the Modbury location has slightly more seating capacity of between 80 to 85 persons. The Elisabeth store had its ’grand opening’ in November / December 2014 and is the location where the nominee, Ms Rajinder Kaur, is stated in the application to be employed for the nominated role. This is a different location to that shown on the nomination application although at the hearing Ms Zhang explained that at the time of the nomination application, a lease had not yet been secured for the Elisabeth location but that this is now secured.
The Tribunal has given consideration to the recent case of Cargo First Pty Ltd v MIBP [2015] FCCA 2091 Federal Circuit Court of Australia, Judge Smith, SYG 348 of 2015, 7 August 2015.The applicant in that case, a business sponsor, sought judicial review of a decision of the Migration Review Tribunal affirming a decision of the Minister’s delegate not to approve a nomination of an occupation in relation to a nominee sought under s.140GB of the Migration Act 1958.
The applicant company owned and operated a franchise business called Muffin Break in a shopping centre, and nominated the nominee, a director and owner of the shares in the company, for approval of the proposed occupation of ‘Sales Manager’ in the position named ‘Sales and Marketing Manager’. The delegate refused to approve the nomination because the tasks of the position were not consistent with the tasks of the nominated occupation as listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
The Tribunal in that case affirmed the delegate’s decision as it was not satisfied that the sales and marketing manager position associated with the nominated occupation was genuine as required by r.2.72(10)(f) of the Migration Regulations 1994. The Tribunal placed weight on the position description in the employment contract and the nominee’s evidence that he performed all of the management duties of the applicant’s business. It considered that those duties were those of the manager of a Muffin Break café and not the duties of a sales and marketing manager. It considered that as Muffin Break was a franchise, the nominee’s duties in making adjustments to the franchise sales and marketing activities to meet the individual circumstances of the applicant’s business did not amount to duties that required a specialised, full-time sales and marketing manager. It concluded that ‘[g]iven the nature and size of the applicant’s business as a franchisee of a Muffin Break and given too the wide range of duties of the nominated position which are not consistent [with] the duties of a sales and marketing manager’ the position associated with the nominated occupation was not genuine.
The applicant in that case contended that the Tribunal misconstrued and misapplied r.2.72(10)(f). It argued that the Tribunal addressed the wrong question by asking whether the nominee’s sales and marketing activities would constitute duties required of a ‘specialist full-time sales and marketing manager’ and assuming that a sales and marketing manager was a specialised position in a larger organisation. The applicant submitted that what r.2.72(10)(f) required was that the person occupying the position was intended to perform the majority of the tasks set out in the ANZSCO definition. Judge Smith dismissed the application and held that:
(i)The Tribunal neither misapplied nor misunderstood the criterion in r.2.72(10)(f). What is required by r.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. The task of the Minister and of the Tribunal on review is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. The Tribunal’s reasoning revealed the type of qualitative analysis required.
(ii)There was no error in the Tribunal’s view that the occupation of sales and marketing manager was specialist and full-time and that would ordinarily be found in a larger enterprise than that of a Muffin Break café. As the criterion required a qualitative analysis which in turn required the application of judgment, it was one which fell solely within the scope of the decision-maker’s task.
The Tribunal notes that the above case is the first judicial consideration of the ‘genuine position’ requirement in the context of a nomination of an occupation in r.2.72(10)(f) since its introduction on 1 July 2013. The Tribunal has proceeded on the basis of the Court’s rejection of the argument that r.2.72(10)(f) simply requires the position to exist and that the relevant duties include a majority of those set out in ANZSCO. The Tribunal has instead considered that r.2.72(10)(f) requires a qualitative analysis of the position and has proceeded on that basis.
The applicant in the present matter submits that the nominated position of Chef ‘fits within the scope and scale’ of the business in ‘preparing and cooking of food, kitchen management, food quality and hygienic monitoring and assurance.’ The tasks listed in the applicant’s submissions mirror those set out in the ANZSCO classification but on further exploration at hearing did not include a number of those tasks listed in the ANZSCO classification for 351311. For instance, Ms Zhang was not able to provide evidence of any discussion of food preparation issues with Dieticians or such like, or the nominee explaining and enforcing hygiene regulations.
The applicant told the Tribunal that Ms Kaur is the person nominated in the application for the occupation of Chef (Sous), that she had applied for a Subclass 457 visa and was first engaged in the applicant’s business in approximately July 2014. Ms Zhang explained, when asked at the hearing, that when Ms Kaur was first engaged at the Modbury location, it was not in the capacity of Chef as this had been filled by a Mr Yao Zhang. It is evident from the oral evidence provided that Ms Kaur was required for the role of Chef from approximately November 2014 when she signed her contract letter, but that this was only for the Elizabeth location as Mr Yao Zhang had stayed on in the business. The Tribunal accepts from Ms Zhang’s oral evidence that Ms Kaur has not worked as a Chef at any stage at the Modbury location, which is where the nominated position purports to be. The Tribunal accepts that that role was already filled and that the applicant seeks Ms Kaur for the nominated occupation of Chef at the Elizabeth site, not the Modbury site set out in the application. The Tribunal accepts that the nominated role at the Modbury location had been filled by Mr Yao Zhang at all material times (including the times when Ms Kaur was working there from July 2014 to November 2014 in a different capacity). This raised doubts in the Tribunal’s mind as to whether the position associated with the nominated occupation is genuine and this issue was raised with the applicant at the hearing.
The Tribunal has had regard to the employment contract dated 20 November 2014 for a full-time position with the applicant at the Modbury location under the Restaurant Industry Award 2010 and the National Employment Standards. The Tribunal notes there is no specific mention of the position of Chef in that document. The contract refers to generic skills and specific skills as set out at page 4 and 5 of the document. A copy was provided to the Tribunal which confirms that Ms Kaur signed this document on 21 November 2014.
The Tribunal has considered the skills listed in the position description attached to the contract together with the oral evidence given by Ms Zhang at the hearing and has compared these to the ANZSCO classifications for the positions of Chef 531311 and also that of Cook 351411. The Tribunal has had regard to the duties listed and also the menu description provided by the applicant and discussed in her oral evidence at the hearing. The Tribunal accepts that the nature of the duties required for the preparation of hot and cold food includes preparation of ‘baked goods associated with breakfast’ including toast, wraps, pancakes as well as a range of simple meals such as sandwiches, open sandwiches/doorstops, side extras, various egg based breakfasts, hamburgers, pizza, salads and other main meals including children’s meals such as nuggets and spaghetti/pasta. The Tribunal considers the more complex meals are those included under the ‘main meals’ section of the menu which includes (amongst others) soups, steak sandwiches, fish and chips, deep-fried or crumbed seafood, lasagne, crumbed schnitzel, nachos, rice dishes and a variety of other simple style dishes including grilled seafood. The Tribunal notes and places weight on the menu attached to the documents at time of application which shows the more complex meals to range in price from (then) $8.95 to a maximum of $16.95. The Tribunal considers this modest price structure is an indication of the nature, complexity and style of the food prepared in the restaurants at both locations.
Having had regard to the oral evidence provided at the hearing of the skills required for the role, the nature of the tasks and duties discussed (including the description of the tasks set out in ANZSCO) and specifically, the range and complexity of the meals prepared in the business, the Tribunal raised with Ms Zhang at the hearing whether there is indeed a need for a Chef or alternatively, the skills required for the nominated role are more akin to that of a Cook.
In response, Ms Zhang said that Ms Kaur was qualified and because of her qualifications of Diploma in Commercial Cookery, the food she prepared would taste better and be presented better than someone without such qualifications. She explained that for a period of approximately 4 weeks at the Elisabeth location, during which the business had no available services of a Chef, (as Ms Kaur is not able to work whilst on a Bridging visa), the cooking duties were shared amongst other Cooks including Ms Zhang who does not hold any cooking qualification. The Tribunal places weight on this, given that on Ms Zhang’s oral evidence, the business has been able to operate for four weeks without a Chef by utilising the skills of both qualified and unqualified Cooks. Further, the Tribunal notes that Ms Kaur’s qualification on the application form is that of Diploma of Hospitality and Ms Zhang was not able to point to any specific training (e.g. apprenticeship or placement) in the capacity of Sous Chef.
The Tribunal has considered the documentary and oral evidence discussed above, and a qualitative analysis of the nominated position and what it purports to be. From this analysis and a comparison of the role with the occupation of Chef nominated by the applicant as a standard business sponsor, the Tribunal is not satisfied on balance, that the position associated with the nominated occupation is genuine.
Therefore, the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Steve Georgiadis
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 3304

17 August 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction