1688 Pty Ltd (Migration)

1688 Pty Ltd (Migration) [2020] AATA 5537 (11 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  1688 Pty Ltd
CASE NUMBER:  1801653
HOME AFFAIRS REFERENCE(S):          BCC2017/634960
MEMBER:Alan McMurran
DATE:11 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 11 November 2020 at 3:10pm

CATCHWORDS
MIGRATION – nomination of a position – position of Café or Restaurant Manager – fast-casual restaurant – inapplicability condition – category excludes this occupation – tasks to be undertaken by the nominee – intention to expand product and service range – COVID-19 pandemic restrictions on in-store dining – nominated occupation corresponds to Customer Service Manager – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140GB, 359
Migration Regulations 1994, Schedule 2, rr 2.72, 2.73
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The Application

This is an application lodged 22 January 2018 for review of a decision made by a delegate of the Minister for Home Affairs on 11 January 2018 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 16 February 2017.
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 nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The application is to approve the nomination for the occupation of Café or Restaurant Manager (ANZSCO 141111) for a nominee, Tongzheng Ma. The applicant operates a franchised pizza restaurant styled as “Crust Gourmet Pizza “from leased premises at Weston in the ACT, where the nominee is currently employed.
The visa applications by the nominee and his partner, the secondary applicant[1], were refused because of the refusal of the nomination. The visa applicants have also sought review in the Tribunal for refusals of the visas.[2]
The Department’s Decision
[1] Ms Jinglin Niu
[2] T case file 1804196
The delegate reviewed the evidence in support of the nomination application and decided not to approve the nomination on the basis that the applicant did not satisfy cl. 2.72(10) (aa). The delegate found that the applicant operates a fast-casual restaurant establishment where the menu is relatively limited, ordering is conducted at the counter, and there was no evidence of table service similar to a full-service restaurant.
The delegate found that the occupation was not applicable according to the relevant legislative Instrument[3] , which precludes the nominated occupation where the position relates to a “fast-casual restaurant” (as opposed to a full-service restaurant).The delegate found that the nominator is part of a pizza chain franchise, which primarily serves pizza, made on the premises.
[3] Immi 17/060
As the delegate found the nomination application fell into one of the applicable categories which excludes the occupation as specified in the relevant Instrument, the nomination application was refused and no further criteria in respect of the nomination were considered.
The Tribunal
On 4 August 2020, the Tribunal sent an invitation to the applicant under section 359(2) of the Act, for the provision of any further information. The applicant was granted an extension to respond with its information by 15 September 2020.
On 14, 15, 16 and 17 September 2020, the applicant responded with evidence supporting its claim. The applicant provided additional information on 15 October 2020 (hearing response), and a statement from the General Manager, on 5 November 2020.
The applicant appeared before the Tribunal on 9 November 2020, by its General Manager, Mr. Mahadeva, also referred to in the hearing response (and known as) Mr Arc Ron.
The hearing was conducted as a combined hearing with the review sought by the nominee as the primary visa applicant[4]. The hearing was conducted by telephone in accordance with the Tribunal’s pandemic protocol. The applicant’s General Manager gave evidence and presented arguments. The Tribunal also received oral evidence from the nominee, Mr Ma, and from the secondary visa applicant, Ms Niu.
[4] T file 1804196
The applicant was represented in relation to the review by its registered migration agent, who also represented the visa applicants. The parties made no objection to the matter proceeding as a combined hearing.
The Tribunal was not made aware of any technical issues occurring during the hearing and all parties were able to be heard clearly. The applicant’s witness, and the nominee and the secondary visa applicant together with the legal representative were all present at the same time at the legal representative’s office in Canberra. The Tribunal conducted the review remotely from Sydney.
There was no request for an adjournment, or any further extensions of time to provide information, and the hearing proceeded on the available information and submissions already made and referred to below. The Tribunal did not request any additional information. None of the parties appearing required an interpreter.
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 applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB (2).
In addition to the requirements of the regulation 2.72, which have been extracted with this decision, the Tribunal must have regard to the requirements of the relevant legislative Instrument[5] for the nominated occupation.
[5] IMMI 17/060
The relevant Instrument provides at Section 8 for certain occupations not applicable to persons who are to work in certain specified positions. For the purposes of paragraph 2.72 (10) (aa) of the Regulations, an occupation is not applicable to a person, if the instrument contains an item that mentions the number of an inapplicability condition, and which condition upon consideration of the objective information, then applies to the position in which the person is to work.
The inapplicability condition in this instance is referred to in the Instrument as Item 8[6], and which states the position of Café or Restaurant Manager is not applicable as a position in the Short-Term Skilled Occupation List, where the position is in a limited service restaurant.
[6] Ibid at Part 2, Section 8, p.16
The Instrument then defines[7] a limited service restaurant to include the following:
·a fast food or takeaway food service;
·a fast casual restaurant;
·a drinking establishment that offers only a limited food service;
·a limited service café, including a coffee shop or mall café;
·a limited service pizza restaurant.
[7] Ibid at Part 1, 4- Definitions, page 1.
The category of such restaurants is not closed. The phrase refers to vocabulary which bears its own ordinary meeting, such as “limited”, meaning restricted in size, amount, or extent; and “service”, meaning payment in return for a service. In general, and commercial terms, the more elaborate and extensive the “service”, the greater the payment. A “restaurant” is simply a location where food can be prepared and consumed, and a dining-in service provided.
All the requirements of the Regulations must be met. If any one of the requirements is not met, it is not necessary to consider the remaining requirements. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
For nominations made from 12 August 2018, the applicant must have paid any nomination training contribution charge in relation to the nomination for which they are liable. That charge provision does not apply in this instance.
The Tribunal has available for consideration the following:
·the Department’s files uploaded electronically for both the nomination and the visa applications;
·the Tribunal’s files for both the nomination review and the primary visa applicant’s review;
·the applicant’s submissions to the Tribunal provided 14 -17 September 2020, and 5 November 2020, and which includes the General Manager’s statement;
·the representative’s submissions, and the written submission concerning the inapplicability condition (otherwise referred to as the hospitality caveats)
·the oral evidence obtained at hearing.
Evidence obtained at Hearing
The Tribunal introduced the hearing by explaining its role and that it was considering the matter afresh based upon the information now provided. No adjournment was sought to provide any further information, unless requested during or following the hearing. No such request has been made either by a party or the Tribunal.
Section 376 certificate
The Tribunal informed the representative of the existence of a section 376 certificate, dated 5 April 2019, on the Department file for the nominee (which includes the secondary visa applicant),[8] and which review as noted above was also being considered together with the nomination. As it was not possible to hand a copy of the Certificate to the representative during the hearing, the Tribunal sent an email to the representative’s given email address, attaching a copy of the Certificate.
[8] T file 1804196
The Certificate refers to the source information received by the Border Watch Allegations and Referral Team on 9 February 2019, is dated, and signed by the requesting delegate. The Certificate notifies the Tribunal and states that disclosure of the material would be contrary to the public interest, because it may enable a person to ascertain the existence or identify a confidential source of information.
The Tribunal finds that it is a valid Certificate, issued under section 376 of the Act.
The Tribunal has had regard to the information referred to in the Certificate, and which it has determined is not relevant to consideration of the issue before the Tribunal concerning the nomination. It pertains on its face to the nominee and the secondary visa applicant and has no bearing upon whether the nominator applicant meets all the relevant criteria of the Regulations for the nomination to be approved, including any condition in the Instrument which applies.
The only issue arising from the nominee’s application is whether there is an approved nomination, and which visa decision follows the nomination outcome. For these reasons, the Tribunal has found that as the Certificate does not have any effect on these proceedings, the material upon which it relies should not be disclosed.
The Tribunal invited the representative to comment, having indicated the Certificate would have no bearing on the Tribunal’s deliberations and its decision concerning the nomination application. The representative asked for a copy which has been provided but did not seek any deferral or adjournment.
Mr Mahadeva -the General Manager
The witness confirmed that he is an Australian citizen, living in Canberra and who since 2017 works “full-time” for the applicant. He said that prior to 2017, he was working as the national sales and performance manager for the Retail Food Group (RFG), which as a franchisor, operates some 168 Pizza Crust establishments around Australia.
He said he was authorised to give evidence for the applicant. The Tribunal noted that Ms Niu was also present for the hearing, as a secondary applicant with the nominee, and that Ms Niu, as a recently appointed director[9] of the applicant, confirmed the authority of the witness to give evidence, and herself subsequently gave evidence in support of the nomination, as did the nominee.
[9] 15 April 2020 – from ASIC record dated 1 September 2020
The witness confirmed that the applicant is a franchisee, and subject to a franchise agreement with the RFG, which has been produced. He said that he also is employed by 3 other pizza franchisees of RFG, operating in Canberra at the suburbs of Belconnen, Charnwood and Gungahlin. He said these other franchisees are not related to the applicant and are all Crust pizza businesses. He said he also operates another unrelated business in Brisbane, where RFG maintains its head office.
The witness said he visits the applicant’s restaurant about twice a week to provide “guidance” to the nominee. He said all reporting to RFG, however, is done by the nominee. He outlined in his evidence the “model” created by the franchisor, which has a specific pizza product line.
He said the franchisee, as with all franchises, must maintain the product as directed by its agreement, but has some limited independence in operation. He described that as meaning the applicant can source some of its own suppliers for vegetables and protein products from Canberra. However, it must only source supplies of pizza sauce and flour from the franchisor’s nominated supplier, as the flour in particular contains a specific formula.
The Tribunal was interested to know to what extent the applicant was otherwise controlled by RFG. The witness said that the store layout is negotiable, and that the applicant is responsible for staffing, financing and its own local marketing.
The Tribunal asked about how the applicant acquired the business. The witness said he thought it was previously owned by another franchisee in 2013, and then acquired by the applicant, he thought in about 2014. He said the business has “always been a franchise”. He said the premises had been subject to a 10-year lease which he thought had recently expired, and that the applicant had signed a new 5-year lease until 2025.
The Tribunal asked about staffing and the witness said the nominee is the principal employee full-time. He said there are other casual staff and he thought 2 cooks who prepare the meat. He said there are pizza makers and “cutters”, who chop up vegetables and other food items. He said the restaurant can seat, pre-COVID, up to 15 people with a maximum of 20 including outside seating. He said the wait staff consist of 3 or 4 casuals. He said patrons come to the counter to view the menu and order food, which is then served to them at tables. He said there is no cutlery and people regularly are served pizza in cardboard boxes for those patrons eating at the tables. He said the restaurant provides plates, bowls and cutlery if requested, for those ordering from the menu and wishing to eat in. He said people usually pay at the counter when they order, and that the restaurant also provides a takeaway service for those ordering from the counter.
The Tribunal referred to the witness’ statement provided 5 November 2020. The witness confirmed he had prepared the statement, which included photographs of other pizza Crust premises not operated or owned by the applicant. One which he referred to at Cronulla in Sydney was a more elaborate style restaurant, judging from its photograph, than the applicant’s premises. The Cronulla premises portrayed a full licensed bar with substantial restaurant seating, at table settings, with cutlery laid out. The Tribunal asked the relevance of the photographs not being the applicant’s premises, and the witness responded to the effect that this was the aspiration for what the applicant’s premises could be, if developed. The witness went on to discuss a recent development application for the site adjacent to the restaurant, made by a third party, which if successful, would have affected the restaurant (near the end of its lease) and prevented further expansion or refurbishment. He said the DA had been refused and hence, the applicant had signed a further 5-year lease with plans to improve the restaurant site, perhaps modelled on the Cronulla venue. Ownership of the applicant had also changed in early 2020 when Ms Niu became the major shareholder and director.
The Tribunal discussed the inapplicability condition with the witness. He agreed that the menu does not change, other than once a year, when the applicant can negotiate the menu based on its “top sellers”. He agreed the menu was “fixed” and with a fixed price, although patrons could add toppings to various pizzas which might change the price.
The Tribunal asked why the witness thought the restaurant was not a limited service restaurant. The witness responded that the applicant employs chefs, has a range of food items including deserts, and cooks the food fresh rather than pre-prepared, and makes its dough on site. He said the franchise operates “independently” in terms of vegetable and protein products sourced by the nominee. He said the applicant does its own local area marketing via a “menu drop”. He said this is done every 4 to 6 weeks into mailboxes. He said the franchisor does not actively advertise or market, and the applicant needs to do so at its own expense.
He said the applicant operates online, taking pizza orders and provides a delivery service using its own drivers. He said that approximately 80% of revenue is derived currently from pizza delivery. He said about 20% was derived from dining in and “pickup”. In terms of the staff, he noted there were in his view 5 full-time staff including the nominee, two chefs for preparation, an assistant for the nominee and a vegetable cutter.
The Tribunal referred the witness to the “dashboard” cloud reports attached to his statement and which refer to total weekly sales, number of orders and average order value. The report also provides pie charts, showing transaction types divided into delivery, pickup from store, and dine in. The weekly pie chart illustration was reinforced by the store analysis by the witness in his statement.
The statement says: “The sales analysis software DPOS which analysis the store sales has the capability to differentiate between Deliveries, pickup and Shop sales (dine in). Below are the Statistics of comparison sales last year to this year (pre covid to now)”.
The witness then creates the following table (pre-COVID):
(Screen shots from DPOS software attached)

Week Commencing

Delivery

Pick up

Dine in

Total

WC 260120

$20,013.20

$18,894.00

$3,073.25

$41,980.45

WC 081219

$23,428.00

$15,173.90

$5,374.25

$42,792.25

The statement goes on to say:
“The focus for the business is to convert the deliveries into Dine in and pickups. The reason behind it is the profit margins according to the Crust modelling is at 9% on deliveries and 23% on dine in and pickups.”

The figures provided are said to be weekly amounts. It can be clearly seen from those figures, which the witness confirmed are indicative for trading, that in any one week approximately 47% sales are from pizza delivery, 45% derive from counter pick up and only 8 % from dine in. These figures above in the table are pre-COVID “lockdowns”, in early December 2019 and end January 2020.
The evidence was confirmed by the witness in the hearing that 80% of sales still come from pizza delivery or pick up, and approximately 20% from dining in, including those who pickup and stay to consume. The applicant employs several delivery drivers each day to deal with the large number of orders, arriving both by telephone and online.
The photographs included with the statement also clearly show patrons eating pizza from cardboard packaging boxes at tables.
The witness said that the nominee was doing an invaluable job and had a very important role in running the restaurant as its daily manager.
The director- Ms Niu
This witness confirmed that she had recently taken over as a director in the business[10] and was the principal shareholder.
[10] 15 April 2020

She confirmed what had been said by the General Manager. She said that the nominee runs the restaurant on a daily operational basis, and she does “everything else”. She explained that in addition to the full-time staff, comprising the nominee, 2 pizza makers, a chef and a vegetable cutter, they employ a number of casuals to work shifts in the evening. She explained the restaurant operates with casuals doing in-store duties including answering the telephone, attending the counter and patrons, and work 2 to 3 hours in each shift. She said there are approximately 4 casuals who act as wait staff in addition to taking phone orders, and approximately 6 to 9 casual delivery drivers depending on the day of the week. She said Friday is the busiest day, and during the weekend. She said they have 3 regular part-time drivers in addition to approximately 6 casuals. She said some of the drivers also do “dough rolling” in the shop when they are not delivering.
The Tribunal asked about plans for the restaurant and the director said they were on hold while a development application which might affect their business was being considered. She said they had made an application for a liquor licence in 2017, which had been withdrawn because of the threat from the proposed development, which might affect the operation of the restaurant.
As the development was not going ahead, they had re-entered a new lease as explained by the General Manager. She said she would like to “reshape” the restaurant so that it is similar to the Cronulla restaurant in Sydney being fully licensed and expanded.
Mr Ma - The nominee
The nominee gave evidence that he was a citizen of the People’s Republic of China. He said he had come to Australia in 2008 as a student in High School. On leaving school, he said he had obtained an advanced diploma. He did not remember all the details but said it was in marketing and he had continued studying until about 2017. He said he had met the secondary applicant in about 2013 and she is now his partner. He said he has been working full-time since 2018 for the applicant at the applicant’s Crust premises in Canberra.
The Tribunal asked about his activities. He said he oversees recruiting staff and managers the restaurant finances, wages and “cost controls”. He says he also supervises local area marketing to “push sales”. He confirmed these were letterbox drops. He said he supervises food preparations, makes records for the franchisor and is working 7 days a week, mostly in the restaurant.
He said the restaurant is open from 4 PM to 10 PM each day, for afternoons and evening meals only. There is no lunch or breakfast and only one menu. He says the restaurant opens to staff outside the trading hours to enable preparation such as cutting vegetables and supplier deliveries.
He said there are approximately 11 staff which includes the 5 full-time members, and part-time “students” who are pizza makers and food cutters and drivers. The Tribunal asked how he recruits the staff, and he said he puts notes on the front door to attract local people who they seek to retain, and also “tries online”. He said he looks after the cash register during opening hours, but other staff also operate the till and can answer the telephone and take orders.
The representative’s submission
On 15 September 2020, the representative provided a written submission to the Tribunal referring to the hospitality caveat or “inapplicability condition”.
The statement notes that the sponsoring business should not be regarded as a limited service restaurant because it “is indeed a restaurant where menu items are prepared fresh every day and food is served at tables”. The statement says the business was “compelled” to “redirect its operations to home deliveries and pickups” because of the pandemic.
The Tribunal notes however that this conflicts with the evidence of the General Manager set out above, which says the trend in weekly sales comprising pizza deliveries, pickups and in-store dining is illustrated by a week in December 2019 and January 2020. Despite the evident slow down following COVID, as illustrated in the recently provided updated weekly pie diagrams, the proportion of deliveries and pickups as opposed to dining-in has remained much the same, with the least sales from in-house dining. The Tribunal is of the view that this regular trading picture is reinforced by the October 2020 figure, provided on 5 November 2020.
The Tribunal notes the written summary from the representative as to the tasks performed and the revenue figures. The Tribunal however prefers the evidence from the witnesses as to orders being taken over the phone and online, as well as at the counter, and noting that little or no evidence has been provided as to what activities are provided by any “wait staff”. It is clear from the photographs produced and from the evidence of the General Manager that patrons are delivered their pizzas in a box which they can then choose to eat at the tables provided. The Tribunal attaches little weight to the statement that “food is served by waiting staff”. What is reasonable to conclude is that the service is similar to that in numerous pizza bars and similar restaurants which cater substantially for deliveries and pick up of pre-ordered product, either by telephone or online or from the counter, where payment is made directly when ordering.
Having paid regard to the oral evidence, the Tribunal does not attach much weight to the submission by the representative that the description of the restaurant is “a far cry from a ‘limited service’ restaurant or a ‘fast food’ operation”. On the contrary, the Tribunal has formed the view on the evidence that the operation of the applicant’s business is very similar to a fast food operation.
Specified occupation
Regulation 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 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the Instrument. 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 Tribunal finds it is satisfied that the nominated occupation corresponds to that of customer service manager, ANZSCO 141111, in the relevant Instrument, and that the occupation is subject to the hospitality caveat. This means that the nominated occupation must relate to a business which is not conducted in a limited service restaurant.
Department policy provides guidelines on what might be regarded as illustrative of limited service restaurants. Such restaurants:
·have a limited dining in capability
·have streamlined/fixed and limited menus
·office speed and convenience
·emphasise takeaway and delivery service
·require lesser skilled staff for food preparation (for example delivery drivers who also prepare dough)
The Tribunal also notes that the limitation of the sponsored skilled visa program in the case of café or restaurant managers is to maintain positions in limited service restaurants for positions generally which can be filled by lesser skilled workers, sourced from the local labour market. The nominee himself confirmed this is the labour force he attempts to attract with “notes on the door”.
The legislation has seen fit to exclude several categories of limited service restaurants as set out above, and which include a limited service pizza restaurant. Such restaurants according to policy provide mainly a takeaway pizza service with limited other menu items and limited table service. In such circumstances, the intention is that lesser skilled staff will be found suitable and available from the local labour market.
Factors which weigh in favour of finding that in the context of this application, the applicant’s restaurant falls into the inapplicability condition, are as follows:
·the restaurant has a limited menu which only changes once a year;
·the menu items are substantially pizza-based
·the restaurant seats only 15-20 people at a time (maximum)
·the restaurant predominantly sells takeaway pizzas which are delivered or collected, and which proportion has not significantly changed since the pandemic
·dining-in patrons eat pizzas from cardboard boxes
·patrons in-house order and pay at the counter
·skilled staff is limited to a chef and the nominee as a manager, whereas most staff are casual and/or part-time delivery drivers and food cutters
·advertising for pizza ordering and delivering is predominantly by mail-order drop to households in the vicinity
·the applicant is part of a large chain of franchised pizza restaurants with limited control over any of its products
·reservations are not required for dining-in where patrons can choose to take away in boxes or eat at the tables provided
·the restaurant has limited trading hours from 4PM to 10 PM, concentrating mainly on its delivery product and according to the director, with an advertised time limit of 30 minutes from ordering to delivery
The Tribunal has carefully considered the evidence from the witnesses. In particular, the General Manager has set out the intention of the restaurant to develop itself into a more sophisticated operation, as confirmed by the director. A delay in development plans may have occurred due to a competing DA proposal, now refused, but the Tribunal places little weight on what is intended, as opposed to what it finds exists, in the current operating environment.
The Tribunal finds on the evidence that it is reasonable to conclude that the applicant operates a limited service restaurant as defined in the Instrument. The Tribunal is satisfied on the available information that the weight of the evidence points inexorably to the fact that the restaurant operates predominantly as a fast casual dining experience, with an emphasis on takeaway and pick up as might reasonably be expected from a limited service pizza restaurant, and as operated by many franchised restaurant chains.
The Tribunal does not accept that the pandemic environment has significantly changed this circumstance, from a predominantly dine-in restaurant, to takeaway and pickup, and finds the restaurant offers only a limited restaurant service. The Tribunal is satisfied that the context, environment, design and aesthetics of the site where the business operates are not aligned with a sophisticated restaurant environment or establishment (such as the example provided of the Cronulla site), requiring the managerial tasks anticipated for the occupation, including planning menus, pricing items and training and supervising staff at a relatively high level.
The evidence has established to the Tribunal’s satisfaction to the contrary, that the establishment is not predominantly dining-in, is in fact a restaurant with “limited service” and mainly for pickup and delivery, and where dining-in forms only a very small part of its usual revenue.
The Tribunal finds therefore that the applicant is caught by the applicability condition (hospitality caveat), which limits the availability of the occupation of café or restaurant manager to restaurants which are not so defined as “limited service”.
As the condition applies, the requirements of r.2.72(10)(aa) are not met, and the position of café or restaurant manager nominated as the occupation, is not applicable for the applicant’s restaurant.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the 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.
Alan McMurran
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)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(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.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(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 the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; 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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or 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.

[2020] AATA 5537

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Week Commencing	Delivery	Pick up	Dine in	Total
WC 260120	$20,013.20	$18,894.00	$3,073.25	$41,980.45
WC 081219	$23,428.00	$15,173.90	$5,374.25	$42,792.25