1512439 (Migration)

1512439 (Migration) [2016] AATA 3578 (17 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sewpersad Holdings Pty Ltd
CASE NUMBER:  1512439
DIBP REFERENCE(S):  BCC2015/1780570
MEMBER:Don Lucas
DATE:17 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 17 March 2016 at 5:00pm

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 28 August 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 22 June 2015. 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)(aa) because the nominated occupation of Cook was not specified in the relevant instrument following a finding that the applicant operated a fast food outlet as opposed to a café or restaurant.
Mr Raj Sewpersad and Mrs Lyn Sewpersad, as owners of the applicant business, appeared before the Tribunal on 5 February 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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).
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 finds that the applicant has made the application in accordance with the approved form 1196N and paid the fee prescribed at the time of application (r.2.73(3),(5)&(9)).
On the basis of the Nomination form the Tribunal is satisfied that the nominating employer has provided the necessary information certification stated in r.2.72(10)(d) or (11)(b) (regarding tasks, qualifications and experience).
The Tribunal finds that the nomination includes the location/s at which the occupation will be carried out, and the name and/or 6 digit ANZSCO code, since the applicant is a standard business sponsor: r.2.73(4A). It finds that the applicant has identified the nominee in the nomination: r.2.73(4A) and r.2.72(5).
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.
On the basis of the information available to the Tribunal from Departmental ICSE records, the Tribunal finds that the applicant was approved as a standard business sponsor for a three year period commencing on 15 April 2015 and ending on 15 April 2018 and that this status remains in effect.
The Tribunal finds that r.2.72(4) is satisfied.
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.
On the basis of the information provided in the Nomination form the Tribunal is satisfied that that the applicant has identified Mr Mubeen Shafqat as the person to undertake the nominated occupation and that Mr Shafqat is a subclass 457 visa holder, which had been granted on 27 February 2014 for a four year period ending on 27 February 2018.
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. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in IMMI 15/028 in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
A subclass 457 visa was granted to the nominee in relation to a previous nomination made by Goroby’s Investments Pty Ltd. The nomination was approved on 13 January 2014 and the nominee was granted a subclass 457 visa pursuant to this on 27 February 2014.
ICSE indicates that on 15 September 2015 Mrs Komal Mubeen was granted a subclass 457 as a secondary subsequent visa following a finding that she met family unit membership criteria in cl.457.321. She is also listed on the current nomination as member of the nominee’s family unit.
For these reasons the requirements of r.2.72(6)(a) are met.
By reference to the entry level requirement listed in ANZSCO for the nominated occupation of Cook, the evidence before the Tribunal is that the nominee Mr Shafqat holds relevant qualifications for the nominated position of Cook. Separately and independently, he further possesses relevant employment experience that may substitute for the formal qualification. The available evidence would support a finding that the nominee would meet cl.457.224(da) and cl.457.223(e) were the nominee applying for a new subclass 457 visa, as opposed to transferring laterally on a subclass 457 visa between two separate nominations under the same ANZSCO designation. As cl.457.223(da) would be satisfied on the basis of the nominee’s skills, it follows that the requirements of r.2.72(6)(b) are not engaged and have no application to the present nomination.
Regulation r.2.72(7A) has no application as the nominee has not sought or been granted a health waiver pursuant to PIC 4006A in relation to the subclass 457 visa he holds.
The subclass 457 visa granted to the nominee was not granted on the basis of meeting the higher salary exemption provisions contained within cl.457.223(6). The nominee is not exempt pursuant to cl. 457.223(11). Relevantly however, the nominee has obtained a result in an IELTS test undertaken in the relevant period achieving an overall band of 7.0 with no component below 4.5. The nominee has therefore undertaken a language test specified under cl.457.223(4)(eb)(iv) and achieved within the specified period in a single attempt the score specified under cl.457.223(4)(eb)(v).
For these reasons the requirements of r.2.72(10)(g) are met.
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;
·the location(s) at which the nominated occupation is to be carried out.
The applicant has provided the name of the position as “Cook”, ANZSCO 351411.
The location of the nominated position is stated to be in the Geelong suburb of Corio, Victoria postcode 3214.
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 rr.1.13A and 1.13B.
It also includes information that the applicant, or a person associated with the applicant has become insolvent within the meaning of the Bankruptcy Act 1966 and the Corporations Act 2001. The conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency must have occurred within the previous 3 years.
The Tribunal finds that there is no adverse information of the type described above known to the Department or it about either the applicant or an ‘associated person’ before it. The Tribunal finds that r.2.72(9) is satisfied.
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 (and concurrently IMMI 15/108, which only specifies one further occupation not presently relevant). 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).
The occupation nominated in this case is Cook, ANZSCO 351411. In respect of this particular occupation, the instrument provides an important qualification, namely that “for a nomination…for a subclass 457 visa…, the occupation excludes positions in Fast Food or Takeaway Food Service”.
In the present case, the Department found that the applicant trading as Chunky Charlies in a shopping complex in Corio, Victoria was a fast food outlet, and accordingly the nomination for the position of Cook in the applicant’s business was excluded from consideration as the occupation of Cook is not specified for the purposes of r.2.72(10)(aa) in circumstances where the position is to be performed in a Fast Food or Takeaway Food Service.
The Tribunal as presently constituted considers that the task of determining whether the occupation of Cook has been nominated to be performed in a café/restaurant, or alternatively in a Fast Food or Takeaway Food Service, is a necessary factual enquiry to make and determine for the purposes of r.2.72(10)(aa). That is, the Tribunal must make a finding as to the nature of the business where the occupation is to be performed, before determining that the occupation of Cook is specified in the instrument. The Tribunal does not consider that the mere listing of the occupation together with its six digit ANZSCO code satisfactorily answered the question, which requires a more substantive determination.
Having an assessed the available evidence before the Tribunal, including an array of documentary material and written submissions coupled with the evidence provided to the Tribunal at hearing, the Tribunal is persuaded that the applicant’s business can properly be classified as a café, if not necessarily a restaurant, and is not merely a fast food/take away food service or a fast casual dining outlet. The Tribunal finds accordingly that the occupation of Cook is one capable of nomination by the applicant.
In this regard, the Tribunal has considered written submissions provided on behalf of the applicant by the representative which in all material respects were reflected in the evidence provided to the Tribunal at the hearing. Relevantly, the submissions stated:
The sponsor is of the view that his establishment is not primarily a takeaway food service or takeaway food service outlet as suggested by the Department but a restaurant that requires the employment of qualified chefs/cooks, kitchen hands, wait staff, baristas, restaurant and front of house managers as well as cleaners.
Whilst the sponsor acknowledges that hot and cold beverages and some food items are available for both dine in or take away, the majority of menu items are only available for consumption in the seat dining area which offers full table service to customers via a waitress who takes orders and then serve food to the diners at the table once order is cooked by kitchen staff. Customers are then required to complete payment for their meals upon completion of the service offering. Meals served are cooked in the kitchen once the order has been placed and there is no prepared food that is served to customers. It seems unfair that the business be typecasted as that of a fast food/casual dining outlet because it offers a takeaway facility for both some food and beverage items, especially given how common this is now among fully licenced café/restaurants as a means to increase customer base and generate further income.
We note to have listed the points that the Department consider applicable when determining the relevance of a sponsoring business to a fast food/casual dining outlet and request that you refer to the below comments which we believe refute current claims.
According to DIBP policy, a fast food/casual dining outlet usually has the following characteristics;
1.usually operate in chains or as franchises
We acknowledge that the sponsoring business is a chain of restaurants, although there only exist 2 outlets at the moment
2.are heavily advertised
The only advertising the sponsoring business conducts is that within the centre the business operates or when advertising for job opportunities available within the business online.
3.offer limited menus
Chunky Charlies has an extensive menu offering customers both breakfast and café lunch style menus, mains such as curries with rice, parmigianas, mix grilled meat, pizzas, pastas, etc. All food is made fresh and in store daily/once order has been placed by a customer and there is no restriction to the dishes offered on the menu. The business has the ability to change their menus seasonally if desired or as per the expertise of cooks employed by the business and their specialties.
4.offer speed, convenience, and familiarity to diners who may eat in the outlet or take their food home
As stated above, the sponsoring business acknowledges that it does offer a take away service as with many café and licensed restaurants today. They do this as a means to match competition, generate further income and gain a larger customer base. The majority of menu items are only available to be consumed in the seated dining area which the sponsor has advised offers table service to customers via a take orders, transit food orders to the kitchen and then serve meals to customers at their table.
5.do not generally employ qualified chefs
The business requires the services of a qualified cook with the relevant skills, qualifications and previous work experience in the same/similar role in order to ensure that their product offering is the best possible quality.
6.prepare food according to a standardised format for distribution from a central location
All food produced by the sponsoring business is fresh and made to order. All food preparation and cooking is done onsite.
7.serve food in a packaged form (although some outlets may provide cutlery and crockery for customers dining in the establishment)
As stated above, all food is made to order. All tables are set with cutlery and menus and are ready for table service.
8.require customers to pay before eating
As with most restaurants offering table service, the sponsoring business requires customers to pay for food at the end of the service delivery and once food has been consumed. It is only when customers have ordered take away beverages/sweets at the counter that they pay at the register prior to receiving the product.
9.do not offer table service before or during consumption of the meal.
As stated above, all tables within the establishment are pre-set with cutlery and menus. Customers are approached by waitress/s shortly upon being seated where they are greeted and orders are taken and the waitress/s then transmits orders to the kitchen. Table service continues throughout the service delivery where plates are removed and sweets/coffee orders are offered during customer dining experience…
Based on the above and attached we are of the view that the sponsoring business is not a fast food/fast dining casual outlet. The sponsoring business prides its success on providing exceptional food and service to customers and currently employs many staff. The sponsor is in desperate need to appoint a cook and has been unable to fill this position with a member from the local labour market.
The evidence provided on behalf of the applicant, in particular from Mr Raj Sewpersad, was persuasive to the Tribunal in relation to the factual matters asserted in the written submissions and in the documentary material provided including photographic evidence, details of organisational structure, and evidence concerning the nature of the menu provided within the applicant’s business. The Tribunal notes and it it is acknowledged by the applicant that there is an element of the business that caters to fast food/take away service but the evidence is clear that this is not the primary operation of the business.
For these reasons the requirements of r.2.72(10)(aa) are met.
In the circumstances of this application, 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. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
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 instrument IMMI 09/113: 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).
The evidence before the Tribunal which it accepts is that there is presently no Australian employee performing equivalent duties to those to be performed by the nominee. The witness and one of the business owners, Mr Raj Sewpersad, is presently undertaking the tasks and duties to be performed in the nominated occupation, at considerable personal inconvenience. As a business owner, any remuneration drawn by Mr Sewpersad is not in the view of the Tribunal an indicative guide as to what an Australian equivalent cook would be provided.

In these circumstances, it is necessary to consider the question of equivalent salary by reference to the methodology specified in IMMI 09/113.
A contract of employment dated 1 June 2015 specifies the nominee’s base salary exclusive of the superannuation component to be in the sum of $58,040. In accordance with the instrument, evidence has been provided in relation to equivalent job advertisements including from which indicates that this base salary is within the range of salaries payable to Australian employees in equivalent positions in the same area.
The Tribunal accordingly finds that the terms and conditions that will be offered to the nominee are no less favourable than those for any Australian equivalent performing the same tasks and duties as performed in the applicant’s workplace.
For these reasons 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).
The instrument specifies that the current TSMIT is $53,900.
As determined in the preceding subheading, the Tribunal finds that the base rate of pay under the terms and conditions of employment that would be provided to an Australian performing identical duties would be equivalent to the nominee’s base salary of $58,400.
As this salary is greater than the TSMIT, for these reasons the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 15/092;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the instrument IMMI 13/067;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 15/092.
By reference to the on-line nomination application form, the Tribunal is satisfied that the requisite relevant certification has been made and for these reasons 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 refers to and repeats its findings made in relation to r.2.72(10)(aa) above. The Tribunal has also considered further submissions concerning the genuineness of the nominated occupation provided to the Tribunal including a statement from the manager of the applicant business Mr Raj Sewpersad concerning the genuine need for qualified cooks within what are presently two (2) restaurant establishments operated by his business. Relevantly, the statements indicate as follows:
“…our business was looking for the sustainable cook, who can handle the kitchen effectively and smoothly as the business goal of our business is to supply quality foods and services to the customers and fulfil their needs and desires. Only an experienced and reliable cook has knowledge about the consistency of foods, fulfil the duties and responsibilities as s/he runs the most complex jobs to maintain the standard level of service. With his past experience/qualifications and his dedication in work Mubeen Shafqat is perfectly suited in this position.
Scale and why the role of Cook is necessary to the operations of the business
Currently the Business owns and operates two outlets and is in negotiations with a third outlet in Westfields Geelong. At Carlo, Coffee n All was transformed Into Chunky Charlies upon purchase. The restaurant requires a full-time cook to provide service to the growing business in the restaurant and the business entity as a whole. For the position many candidates were considered but they were unsatisfactory. Therefore, the business decided to approach Mubeen who had previously worked as a full-time cook in 457 visa at Coffee n All. His skills and professionalism surpass the required standards and furthermore, he is already experienced in working in the same setup.
As recommended by his previous employer, he played an integral role In meeting the business goals and was always willing to fulfil the duties and responsibilities as required. During his tenure as cook in Coffee n All, the business set high quality of standard in service delivery. Mubeen is already in 457 visa and as there Is a need for a full-time cook In Chunky Charlies, Cairo, Mubeen has been nominated for the position of cook,
Increasing business and revenue
With focus on increasing sales, the business is trading very strongly per quarter as evident in the accompanied Bas reports. Sales have been strong and steady. September quarter witnessed sales over $100,000, December quarter experienced a slight decrease in turnover due to the number of non- trade days owing to public holidays, The Business bounced back in the following quarter and posted sales close to the $100,000 mark.
The projection of sales of $ 460,000 for the period from 1 Feb 2015 to 31 Jan 2016, as drawn by HMG Pacific Pty Ltd, represents a stable growth. The BAS for the March 2015 quarter Is a strong indicative of the progressive nature of the business. The financial position of this business is viable and is of scale substantial enough to easily be able to afford a full time employee in the role of a Cook.
Readjustment, increase in operational activities and growth
allow the business to function efficiently and grow. To maintain and further Increase the customer base of the previously functioning restaurant there is an evident need for a qualified, competent and experienced cook.
As I am looking towards adding another outlet and focusing more of my time in the profitability of the Business entity as a whole, Mubeen is the most suited candidate to handle the day to day affairs of the restaurant with minimum supervision due to his past employment in the capacity of full time cook at the same place.
RE: Customer engagement and transaction Procedure
With reference to the said business, customer's checks in, they are offered a table and seated In a table and given menus. When they are ready, they place the order to the floor staff. Once the order is received meals are prepared by our cook and kitchen staff and served to the respective tables. Foods are cooked from base and there is no packaged foods provided to the customers. As requested attached are the menus and few pictures of the seating area and tables.
As noted above, the Tribunal found the business owner Mr Raj Sewpersand to be credible and reliable witness in terms of the evidence that he provided to the Tribunal at the hearing which was consistent with all other material before the Tribunal. No concerns arise for the Tribunal in relation to the genuineness of the position associated with the nominated occupation of Cook.
For these reasons 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, unless the nominated occupation is specified by instrument (which is not currently applicable).
The applicant has provided an employment contract dated 1 June 2015 which contains terms and conditions the Tribunal considers to be consistent with National Employment Standards.
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). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing (LMT)
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
None of the LMT exemptions apply in respect of the occupation of Cook.
However, the applicant has provided evidence of LMT undertaken 19 May 2015, prior to the nomination lodged on 9 July 2015, which the Tribunal considers to be satisfactory.
For these reasons, the labour market testing requirements in s.140GBA are met.
CONCLUSION
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 Lucas
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.
(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.

[2016] AATA 3578

17 March 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness

Remedies

Standing