A Pannu Investments Pty Ltd (Migration)

A Pannu Investments Pty Ltd (Migration) [2021] AATA 3114 (12 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  A Pannu Investments Pty Ltd
CASE NUMBER:  1816158
HOME AFFAIRS REFERENCE(S):         BCC2018/1339043
MEMBER:Alison Mercer
DATE:12 July 2021
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 12 July 2021 at 10:51am

CATCHWORDS
MIGRATION – nomination – Cook – specified occupation – Short Term stream – IMMI 18/048 – full service restaurant – position associated with the nominated occupation is genuine – applicant lawfully operating a business in Australia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245R, 359
Migration Regulations 1994, rr 1.13, 5.19,2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Home Affairs on 22 May 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, A Pannu Investments Pty Ltd (trading as The Coffee Club, Fountain Gate) applied for approval of its nominated occupation of Cook (ANZSCO code 351411) on 21 March 2018. A nomination of an occupation for a subclass 482 visa is made under s.140GB of the Act and r.2.73 of the Regulations. The occupation must be nominated for a subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific 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. Additional criteria are specified in s.140GBA. In this case, the occupation is nominated for a subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(8) because the delegate concluded that the nominated occupation could not be approved as it fell within one of the exclusionary caveats in the relevant written instrument. Specifically, the delegate found that the applicant operated a limited service restaurant, which meant that its nomination of a Cook could not be approved.
The Tribunal received a review application on 2 June 2018. It was lodged on the applicant’s behalf by its director, Ramandeep Pannu, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Pannu appointed a registered migration agent, Mr Bikramjit Singh Sidhu, as the applicant’s agent and authorised recipient for correspondence.
On 26 April 2021, the Tribunal wrote to Mr Pannu, via the agent, pursuant to s.359(2) of the Act, to invite him to provide updated and current evidence demonstrating that the applicant met all of the criteria in r.2.72 (not just the criterion that the delegate found was not met). The Tribunal provided examples of the kind of information that would assist it to assess whether the applicant met the r.2.72 criteria, and requested that the applicant provide the information by 10 May 2021.
On 10 May 2021, the Tribunal received the following:
·legal submissions from the agent;
·trust tax returns for The Trustee for A Pannu Family Trust for 2017/18 and 2018/19;
·Business Activity Statements (BAS) for July – September 2019, October – December 2019, January – March 2020, April – June 2020, July – September 2020, and October – December 2020;
·revenue centre financial report, 5 September 2021 to 5 October 2021;
·nominee’s International English Testing Language System (IELTS) results, 30 September 2017;
·ASIC company details for the applicant;
·statement dated 10 May 2020 [sic] addressing the Occupational Caveat;
·Pay Guide to Restaurant Industry Award [MA000119] published 4 February 2021;
·position description for the nominated position;
·financial statements for The Trustee for A Pannu Family Trust for 2018/19 and 2019/2020;
·Payroll Activity Summary for the applicant for 1 January 2021 to 4 May 2021;
·menu for the applicant;
·advertisement for nominated position lodged with CareerOne website, undated;
·statement dated 10 May 2020 [sic] addressing market salary rate for nominated position;
·Department approval for the applicant as a Standard Business Sponsor (SBS) issued 28 March 2018, valid to 28 March 2023;
·photographs of applicant’s kitchen facilities and diners dining in, undated;
·Department grant letter dated 22 September 2016 for subclass 457 visa granted to nominee, valid to 22 March 2018;
·order record for dine in and take away income for the applicant for 18 weeks in 2020 and 2021;
·Bridging visa A grant letter for the nominee;
·organisational chart for the applicant;
·City of Casey Food Premises Registration Renewal, 1 January to 31 December 2021; and
·payslips for the nominee.
On 16 June 2021, the Tribunal wrote to Mr Pannu via the agent to invite them to appear on behalf of the applicant at a hearing on 7 July 2021.
On behalf of the applicant, Mr Pannu appeared before the Tribunal on 7 July 2021 to give evidence and present arguments. The Tribunal also received oral submissions from the agent.
Mr Pannu told the Tribunal that he took over the business (trading as The Coffee Club, Fountain Gate) in October 2015. At that time, it was trading quite poorly and he embarked on efforts to turn it around. This included hiring his own team. He recruited the nominee to work as a full time Cook in March 2016, after she responded to advertisements for positions with the applicant. He noted that it was at that time, and remained, difficult to get people who wanted to work in the kitchen on a full time or even a permanent part time basis, as many people working in such roles were students, and wanted to work casually, fitting their hours around their studies and other activities. This had been exacerbated by the reduction in the number of overseas students in Australia since the pandemic, as many of them had worked in hospitality.
Mr Pannu confirmed that the nominee was granted a subclass 457 visa in March 2016 on the basis of the applicant’s sponsorship and nomination of her was approved. She had worked for the applicant from then to date, and both parties wished her to continue to do so. Mr Pannu described the nominee as the backbone of his business. He noted that he had kept the nominee in full time employment even during the pandemic and associated lock downs in Melbourne, and even though the business was not eligible for JobKeeper for her as she was not a permanent resident or citizen. This demonstrated her value to him and his business. Mr Pannu noted that at the time he took the business over, it was making $17,000 to $18,000 per week, whereas it was now making $30,000 per week with the team that Mr Pannu had selected, of whom the nominee was crucial. Mr Pannu further noted that he was currently spending 5 days per week in the business, so had direct knowledge of the nominee’s skills and work ethic.
In response to the Tribunal’s query, Mr Pannu said that The Coffee Club Fountain Gate was licensed to seat 110, but this was suspended or restricted during the various lockdowns affecting Melbourne in 2020 and 2021. Although during the long lockdown in 2020, they were not able to have diners in-house, the restaurant nevertheless remained open 7 days per week for take away food deliveries via Uber and Menulog. Mr Pannu said that Westfield, the landlord for the Fountain Gate shopping centre, deferred rental payments for a period but they were now due again. The rent for the applicant’s venue was $250,000 per year, or $800 per day, reflecting its location in the shopping centre, which was away from the food court area, in a high traffic area. Mr Pannu said that the head office of The Coffee Club franchise had also done what it could to support franchisees, such as deferring some fees and allowing them to operate with streamlined product lines. Despite this, it was still very stressful as there was no precedent for the pandemic and its associated restrictions in Victoria. Mr Pannu explained that they retained their kitchen staff on a full time basis during the lockdowns and for most of this period, the front of house staff were at home but were being paid to complete training modules, to keep them engaged. The business managed to retain 95% of its staff but they were still experiencing acute staff shortages. Mr Pannu said that in addition to advertising positions on the Coffee Club internal website, he had used Zua and Seek websites to advertise positions, and had also put up ads in the restaurant window. However, there was a dearth of applicants.
Mr Pannu told the Tribunal that after the end of the longest lockdown in late 2020, the business began to recover strongly, by about 90%, as there was a lot of pent up demand. After the most recent shorter lockdown in 2021, demand returned but people were more cautious with their spending, as JobKeeper was not available to many people during this lockdown. However, overall, growth was positive compared to the same time in 2019.
In response to the Tribunal’s query, Mr Pannu said that the nominee’s contract of employment dated 19 March 2018 was still current. He confirmed that the franchise agreement with The Coffee Club required that franchisees pay at least the applicable rate in the Restaurant Industry Award, but most franchisees (including him) paid over the Award rate, otherwise they were not able to attract suitable staff. In relation to the organisational chart provided earlier in 2021, Mr Pannu said that it remained current, apart from the fact that the Chef had reduced her hours to 3 days per week due to her children’s school commitments. She had also expressed a wish to work on the floor, rather than in the kitchen, so he speculated that he might have to recruit another Chef in the near future. He estimated that it took about 3 months to train kitchen staff to the required standard. They were advertising for staff at present, and Mr Pannu was working 4 days per week in the kitchen in the meantime, to bridge the gap, but he stated that this was not a long term solution.
Mr Pannu confirmed that the restaurant had a full commercial kitchen, and all ingredients are delivered fresh daily. All meals, including items such as condiments, sauces and hash browns were made from scratch. Mr Pannu said that the franchise agreement required them to use the Coffee Club logo and colour scheme, but he was free to arrange the seating and lay out as he wished. With the menu, they were required to carry the franchise’s product lines and provide menu items that were common to all Café Bar Restaurant outlets in the franchise but they also had the freedom to develop and sell their own menu items (as Chef’s Choice Specials) each month, although they had to use the existing product lines. He developed these with the Chef and the Cook each month. The same applied for festive days such as Mother’s Day and the Christmas period. Mr Pannu said that full table service was offered for those dining in, and bookings were taken. On days such as Mother’s Day and weekends, the place was often booked out. All meals were cooked from scratch, and dietary substitutions could be made. Most meals could be made in 15 minutes or so from scratch but the brunch menu on weekends required 30 to 40 minutes for some dishes. The premises was licensed to serve alcohol and did so. It also had a VIP Program which had 400 members, and which had been responsible for increased sales.
Mr Pannu told the Tribunal that the annual payroll amount for staff salaries was around $500,000 for 2020/2021 to date. In response to the Tribunal’s query, Mr Pannu said that if the nomination was not successful, it would have a significant adverse effect on the applicant. He explained that the nominee got in at 8am and set up the kitchen for the day. She was also responsible for monitoring food safety, and this was a highly regulated area, and subject to unannounced biannual council inspections per year. Losing her would disrupt the business and jeopardise the Australian staff’s employment. He noted that he had 4 responses to his latest advertisement, and 3 were not willing or able to work on weekends, whereas 50% of their sales were on weekends.
In relation to the Tribunal explaining the Departmental guidelines on what constitutes a ‘fast casual restaurant,’ Mr Pannu said that The Coffee Club was not a fast casual restaurant, given the above – he contrasted this with other venues within Fountain Gate, such as Michel’s Patisserie and Muffin Break, which he considered were fast casual venues.
Following the hearing, the Tribunal received additional evidence from the applicant, being:
- dine-in and takeaway daily sales comparison reports (7 days); and
- order receipts of the fresh produce ordered.
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 applicant is an approved work sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s.140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal is satisfied from its review of the Department’s file that:
·the applicant is nominating an occupation under s.140GB(1)(b) in relation to a proposed applicant for a subclass 482 visa, as per r.2.73(1);
·the nomination was made using the approved form and fee, as per r.2.73(3),(4) and (5);
·the nomination was not required to be accompanied by the applicable training contribution charge, as per r.2.73(5A) as it was lodged before 12 August 2018;
·the nomination was made in the Short term stream as the nominated occupation of Cook is a short term strategic skills specified occupation in the relevant instrument, IMMI 18/048, as pe r.2.73(6);
·the applicant identified the nominee, Ms Rajpal Kaur, as per r.2.73(8);
·the nomination included the name of the occupation and the corresponding 6 digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nomination, as per r.2.73(9);
·the nomination included written certification that the applicant had not engaged in conduct that contravenes s.245AR(1) of the Act: r.2.73(12);
·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per r.2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(14).
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) 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.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The applicant has provided information, which is confirmed by the Department’s records, that the applicant is an approved standard business sponsor. The approval ceases on 28 March 2023.
Accordingly, the Tribunal finds that the requirements of r.2.72(5) are met.
Payment of debt mentioned in s.140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s.140ZO of the Act.
There is no evidence that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge. As discussed below, the Tribunal is satisfied that the applicant is not liable to pay a nomination training contribution charge.
For these reasons, the Tribunal finds that the requirements of r.2.72(5A) are met.
Requirements for existing subclass 457 or subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a subclass 457 or subclass 482 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 or subclass 482 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);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl.482.223 (if the nomination is in the Short-term stream) or cl.482.232 (if the nomination is in the Medium-term stream): r.2.72(14).
The Tribunal has reviewed the Department’s records and is satisfied that the nominee held a subclass 457 visa granted to her on 22 September 2016, which ceased on 22 March 2018, 1 day after the nomination application was lodged. As she held a subclass 457 visa at the time the nomination was lodged, the applicant must meet the dot points above.
The Tribunal is satisfied that the nomination application lists the nominee and her 3 family unit members: Baljinder Singh, Dilraj Kaur and Fateh Singh. There is no evidence that the Minister requested evidence that the nominee satisfied language requirements.
Accordingly, the Tribunal finds that the requirements of r.2.72(6) are met and the requirements of r.2.72(14) are inapplicable to the present case.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds that the nominated occupation of Cook (ANZSCO code 351411) are specified in the Short Term stream in IMMI 18/048. The Tribunal is further satisfied that the occupation of Cook is subject to the following caveats set out in the following notes to that instrument, which exclude Cook positions where:
·Note 7: the position is involved in mass production in a factory setting
·Note 8: the position is in a limited service restaurant.

The Tribunal is satisfied from the material provided that the position is located within a café located at Fountain Gate Shopping Centre in metropolitan Victoria, and it finds that it is not excluded under the terms of note 7 above.
In relation to note 8, and what constitutes a ‘limited service restaurant,’ the Tribunal has had regard to Departmental policy, as set out in the Department’s Procedures Advice Manual (PAM3) on this topic (version in force at the time the nomination was lodged on 12 April 2018):
…
4.4. Caveats – an overview
4.4.1. Caveats which apply to specified occupations
Caveats are designed to ensure skilled visa programs are used to fill skilled positions that cannot be filled via the local labour market.
When listed in the legislative instrument with a caveat, the occupations specified are excluded from use under the relevant visa program in certain circumstances.
A summary of Caveats on occupations is available on the website, as well as below see section 4.5 Advice on occupations with caveat.
Note: currently caveats apply only to the subclass 457 (not covered in this PI), 482, and 186 programs.
4.4.2. Caveats ‘v’ inapplicability conditions
The Department has traditionally used the word ‘caveat’ to refer to a restriction placed on a particular occupation that remains on the list of eligible skilled occupations – with, for example, Cooks, Chefs and Café and Restaurant Managers subject to a ‘fast food’ caveat for a number of years. The word ‘caveat’ has never, however, been specifically referenced in the relevant legislative instrument which used a note or asterisk (*) to indicate that a restriction applied in the case of a particular occupation.
The current legislative instruments present such caveats in the form of ‘inapplicability conditions’. Inapplicability conditions serve the same function. To avoid confusion, departmental guidelines continue to refer to caveats. ‘Caveats’ and ‘inapplicability conditions’ are considered equivalent expressions.
4.4.3. Caveat exceptions
There are no exceptions to the caveats that are imposed on certain occupations. This is because these caveats are included in a legislative instrument – that is, they are not policy only. For example, where the caveat requires the nominated position to be paid annual earnings of AUD$65,000, a nomination for an otherwise applicable occupation cannot be approved where a lower salary is being offered to the nominee.
Limited situations in which there is flexibility in terms of how a caveat is interpreted, however, are outlined below where relevant.
…
4.6.1.7 Cooks (ANZSCO 351411) – Conditions 7 & 8
A caveat is in place for this occupation which excludes positions involved in mass production in a factory setting and positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, the following:
·            fast food or takeaway food services;
·            fast casual restaurants;
·            drinking establishments that offer only a limited food service;
·            limited service cafes including, but not limited to, coffee shops or mall cafes;
·            limited service pizza restaurants.
For further advice regarding how the above terms are defined, refer to section 4.7 Additional advice on hospitality positions and caveats.
…
When determining whether the caveat applies, officers should first confirm that the nominated position is not located in a limited service restaurant – using the guidelines provided at section 4.7 Additional advice on hospitality positions and caveats
…
4.7. Additional advice on hospitality positions and caveats
There are caveats in place for the occupations of Café or Restaurant Manager, Cook and Chef, which exclude the occupation from employer sponsored visa programs where the position is based in a limited service restaurant.
A limited service restaurant, as outlined in the instrument, includes, but is not limited to, the following:
·            fast food or takeaway food services;
·            fast casual restaurants;
·            drinking establishments that offer only a limited food service;
·            limited service cafes including, but not limited to, coffee shops or mall cafes;
·            limited service pizza restaurants.
Cook and chef positions are also excluded where they are involved in mass production in a factory setting.
This section explains how the above terms are defined under policy for the purposes of these caveats.
Note: Not related specifically to caveats, additional advice is also provided at the end of this section in terms of the differentiation between Cook and Chef positions.

4.7.1. Definitions
4.7.1.1 What is a fast food or takeaway service?
Under policy, fast food or take away food is defined as food that is quick to cook or is already cooked and as a result can be served as a quick meal or to be taken away – i.e. “a meal to go”.
Such food is to be distinguished from a restaurant or café where people sit and eat meals that are cooked and served on the premises, pay on completion of the meal and with the service provided being an important factor, as well as the food.
Examples of eating establishments considered under policy to provide fast food or takeaway services may include, but are not limited to, fast food chains, fish and chips shops, hamburger shops, kebab shops, takeaway sushi shops, Asian noodle take away shops and fried chicken shops.
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.
4.7.1.2 What is a fast casual restaurant?
Fast casual restaurants, sometimes also referred to as fast casual dining outlets, are similar to fast food outlets except the quality of the food and prices of the menu are somewhat higher and they may have a liquor licence.
These restaurants are designed to offer the quality of established restaurants with the informality of fast food stores and speedier service than a full service restaurant. Typically, these outlets:
·            do not provide full table service, with customers ordering their food at a counter even if it is delivered to the table;
·            operate in chains or as franchises and are heavily advertised;
·            offer streamlined menus similar to fast food establishments;
·            offer speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;
·            do not generally employ chefs – with some menu items still mass-produced, even if they are made from better quality and fresh ingredients,
·            cater for special dietary needs unlike fast food establishments; and
·            do not have a drive through facility.
Examples of eating establishments that are considered to be fast casual restaurants may include, but are not limited to fast casual dining franchises which focus on serving a ‘gourmet’ or ‘organic’ version of fast food (e.g. burgers, fried chicken, fish and chips, sandwiches) or food from a particular country (e.g. Mexican, Greek, Italian or Japanese).
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.

4.7.1.3 Drinking establishments that offer only a limited food service
Nominations can be received for the occupations of cook, chef and café or restaurant manager where the location is a drinking establishment, such as a pub, a bar, a beer hall or an izakaya.
In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant – with some pubs even marketing themselves as ‘gastropubs’
Employer sponsored skilled visa programs are not considered appropriate to fill positions in bars/pubs where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Under policy, a drinking establishment is considered to have a limited food service menu where it only provides snacks (e.g. olives, dips, chips, pickles), or a very limited range of food that involves limited preparation (e.g. toasties, tacos, simple pizza or standard hamburgers).
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.

4.7.1.4 Limited service cafes including a coffee shop or mall cafe
Nominations can be received for the occupations of cook, chef and café or restaurant manager where the location is a café. In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve (e.g. coffee, tea, non-alcoholic drinks). In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.
Employer sponsored skilled visa programs are not considered appropriate to fill positions in cafés where only a limited food service is provided, such as coffee shops or mall cafes – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Under policy, factors adding weight to a finding that an eating establishment is a limited service café include that the café:
·            is located in a mall;
·            is primarily a coffee shop (that is, an establishment that focuses on serving hot beverages such as tea or coffee) ;
·            have a limited food menu that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).
By contrast, full service cafes are likely to have a comprehensive food menu and develop most dishes “from scratch” in a full commercial kitchen.
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.

4.7.1.5 Limited service pizza restaurant
Nominations can be received for the occupations of cook, chef and café or restaurant manager where the location is a pizza restaurant. In some cases, these establishments will provide mainly a take-away pizza service with limited other menu items and/or only limited table services. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.
Employer sponsored skilled visa programmes are not considered appropriate to fill positions in pizza restaurants where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Under policy, factors adding weight to a finding that an eating establishment is a limited service pizza restaurant include that the restaurant:
·            does not serve non-pizza related items;
·            has minimal onsite seating, with take-away the main focus of the business;
·            clients pay at the counter;
·            clients eat pizza from pizza boxes even if on the premises.
By contrast, full service pizza restaurants are likely to have a comprehensive food menu and develop most dishes from scratch in a full commercial kitchen.
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café– see Distinguishing between full service and limited service cafés/restaurants.

4.7.1.6 What is mass production in a factory setting
An additional caveat applies to the occupations of cook and chef which excludes positions involved in mass production in a factory setting – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Cooks are expected to be involved in preparing and cooking food from scratch rather than, for example, just heating pre-prepared meals, or making basic food stuffs in a factory setting.
Under policy, mass production refers to the making of products using assembly line techniques, with workers working on an individual step of the production process. Such production techniques usually also involve the use of tools, machinery and other equipment, usually automated.
If a nominated position for a Cook or a Chef is based in a factory setting, officers will need to check whether or not this additional caveat applies.

4.7.2. Distinguishing between full service and limited service cafés/restaurants
The sections below are designed to assist officers to determine whether the nominee will be based in a restaurant or café, or in one of the locations that is specifically excluded via a caveat on the occupation listed in the relevant legislative instrument.
Officers will need to make an assessment as to the location of the nominated position, based on the individual circumstances of the case and taking into account all the material available in relation to how the business actually operates. The factors outlined below are considered critical in terms of distinguishing between full service and limited service café/restaurants.
Note:
·            The key factors are the way in which the food is ordered, served and consumed, not the quality of the food.
·            If a food service business operates through a chain or franchise arrangement, it is possible that some outlets will be fast food or takeaway businesses while others are cafes or restaurants. It is therefore important for officers to assess this issue on a case by case basis. In this situation, officers also need to ensure that any supporting evidence provided, relates to the specific outlet that is the subject of the nomination, rather than another premises in the chain.

4.7.2.1. Factors supporting classification as a restaurant or café
Under policy, factors that may be relevant to an assessment that the position is based in a café or restaurant include:
·            how the business is marketed to the public
·            the business is mainly engaged in providing food and beverage serving services for consumption on the premises, even if take away services are available
·            meals are made on-site from raw ingredients, portion size may vary depending on the cut/produce size available, involving substantial preparation (for example, peeling, chopping, de-boning, grating), seasoning and cooking - using a range of equipment and techniques depending on the nature and size of the produce that is being prepared
·            a comprehensive menu is available which incorporates a broader range of ingredients that are delivered fresh to the premises
·            table service is provided – that is customers are seated at restaurant/café tables and provided with assistance while seated as required (i.e. provided with menus, asked for order, provided with additional items/assistance where required and provided with bill)
·            customers pay after eating
·            the business holds a liquor licence and has a comprehensive selection of alcoholic beverages available via table service
·            the menu caters for special dietary requirements and varies from time to time depending on availability of produce, and seasoning
·            if the menu is limited, there is a focus on organic or specialty ingredients that are prepared onsite or ‘gourmet products’, and/or prices are higher than would be expected at a takeaway establishment
·            the size of portions may also vary from time to time given the human element involved in the preparation and cooking of the items
·            the business has a full commercial kitchen and significant food storage facilities for fresh ingredients
·            the business has had their performance recognised via restaurant industry awards
·            employment at the business has been accepted by TRA as skilled work experience, or by a recognised training institution as sufficient to support study in a Certificate III in Commercial Cookery
·            where a chain, different outlets are designed differently to reflect the local customer base and outlets are largely owned by the company rather than franchisees.

4.7.2.2. Factors supporting classification not as a restaurant or café
Under policy, factors that may be relevant to an assessment that the position is not a restaurant or café (i.e. that it is based in a fast food or take away service, or a fast casual restaurant) include that:
·            the business does not offer full table service
·            the business is a well-known fast food or fast casual restaurant chain
·            the business markets itself as a fast food restaurant or a fast casual restaurant, within significant levels of advertising
·            the business is primarily a coffee shop
·            operate a franchise or restaurant chain, where different outlets are largely identical in design
·            the business offers speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;
·            the business mainly engages in providing food services ready to be taken away for immediate consumption with only limited onsite seating provided (if any)
·            the business offers streamlined or limited menus, with food prepared according to a standardised format or that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).
·            the business does not generally employ chefs – with food still mass-produced even if better quality and fresh ingredients are used than is typical in a fast food context , with special dietary needs often catered for
·            the business does not have a full commercial kitchen – and only has equipment for heating/final preparation of food
·            the business is located in a food hall and food courts that consists of fast food and take away services, as opposed to award winning/high profile restaurants that can now be co-located in some shopping malls
·            customers are required to order at a counter and pay before eating
·            limited seating and/or only communal tables shared with other business is provided
·            meals are served in packaged form and/or there is a focus on ‘street food’ (i.e. handheld foods)
·            meals are served in disposable containers (although some outlets may provide cutlery and crockery for customers dining in the establishment)
·            reservations are not required or provided for
·            food is distributed from a central location
·            food is apportioned into predetermined quantities and sizes, seasoned to a fixed standard and delivered, pre-packaged, with preparation on-site being limited to thawing, heating and/or basic cooking (e.g. frying or grilling)
·            if heating or cooking is required, cooking times for the items are usually pre-arranged for a set duration, as the time it takes to cook through can be predetermined given the control over portion size that is packaged prior to delivery to each venue
·            employees of the business are covered by the Fast Food Industry Award
·            the business has had their performance recognised via fast food industry awards.
Officers are reminded that the above considerations are for guidance only and are not intended to be an exhaustive list. Officers must consider, on an individual basis, all circumstances of which they are aware, or should be aware, and which are relevant to the determination, and must not apply these factors inflexibly.

4.7.3. Distinguishing between cook, chef and kitchen hand positions
It can be important for officers to determine whether a particular position is in fact a skill Level 2 Chef (ANSZCO 351311) or a skill level 3 Cook (ANZSCO position), particularly in the context of the TSS visa program where different visa stay periods apply.
As outlined in ANZSCO, the qualifications and/or experience required for these positions are different. The occupation of Chef requires a diploma or higher qualification, whereas the occupation of cook requires only an AQF Certificate IV or an AQF Certificate III including 2 years of on-the-job training.
The tasks that would be undertaken by individuals in these occupations also differ. Tasks for Cooks include:
·            examining foodstuffs to ensure quality
·            regulating temperatures of ovens, grills and other cooking equipment
·            preparing and cooking food
·            seasoning food during cooking
·            portioning food, placing it on plates, and adding gravies, sauces and garnishes
·            storing food in temperature controlled facilities
·            preparing food to meet special dietary requirements
·            may plan menus and estimate food requirements
·            may train other kitchen staff and apprentices
Tasks for Chefs include:
·            planning menus, estimating food and labour costs, and ordering food supplies
·            monitoring quality of dishes at all stages of preparation and presentation
·            discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
·            demonstrating techniques and advising on cooking procedures
·            preparing and cooking food
·            explaining and enforcing hygiene regulations
·            may select and train staff
·            may freeze and preserve foods
Under policy, factors that may be relevant to an assessment that the position is a Chef position include:
·            the primary role of the position is managing a kitchen, with some limited, specialised cooking tasks;
·            there is at least one cook that the nominated chef will supervise;
·            the nominated position is in a restaurant environment;
·            nominee has a diploma or higher qualification;
Under policy, factors that may be relevant to an assessment that the position is a Cook position include:
·            the organisation only has a single person performing the “cooking” function, the relevant occupation is likely to be that of a cook
oThis is because in these circumstances, it is likely that the person will spend most of their time on cooking, rather than managerial tasks. If the employer, believes that a stand-alone cooking role is that of a chef, the onus is on them to provide justification.
·            Tasks are performed at a lower level of skill e.g. a cook is likely to instruct a kitchen hand on hygiene and preparing ingredients rather than demonstrate how a particular dish is prepared to a group of cooks.
Note: officers are also encouraged to take care to ensure that overseas workers are not working in lower skilled positions such as Kitchenhands (ANZSCO 851311) that could be performed by an Australian with secondary education and/or minimal on the job training. Tasks such as the following are not considered appropriate tasks commensurate with the occupation of Cook (351411):
·            taking orders and receiving payment from clients;
·            washing, measuring and mixing foods for cooking
·            arranging delivery of prepared food of beverages
·            cleaning kitchens, food preparation areas and sculleries
·            cleaning cooking and general utensils used in kitchens and restaurants
·            transferring, weighing and checking supplies and equipment
·            assembling and preparing ingredients for cooking, and preparing salads, savouries and sandwiches
·            packing food and beverage trays for serving, or
·            cooking, toasting and heating simple food items.
…

The Tribunal accepts that Departmental policy is not legally binding but should be given some weight where it does not conflict with or make more restrictive the underlying legislative provision(s).
The material provided to the Tribunal in March 2021 includes information addressing this issue to argue that the applicant does not operate a limited service restaurant including the following:
Dear Tribunal Member,
In response to your request for more information, explaining the inapplicability of the occupational caveats to the nomination application, I submit to you the following statements to support our claims that our business is not a limited-service restaurant.
Food Service/Table Service
All patrons who wish to dine in all the food is served on the tables. Our aim is to provide complete dining experience to our patrons. As per our sales reports generated at the The food is prepared and cooked on site from fresh raw materials as much as possible.
Customers are generally greeted, seated and order is then taken. At the time of ordering the waiting staff also serve water, ask for any other drinks and other extra complementing food items. After the original order is placed, further service is offered to the customers who finalise and pay for any additional items purchased at the end of their meals. This includes the offer of any coffee/tea and also any desserts to finish their meal. Food is served in appropriate china dishes and steel cutlery is provided Payments are made after the food is served and just before the customer is about to leave. They have the option of paying via cash and card. As customers are provided with table service, they are provided with a table number to where the order is allocated to and the meal is served to them. After the original order is placed, further service is offered to the customers who finalise and pay for any additional items purchased at the end of their meals. This includes the offer of any coffee/tea and also any desserts to finish their meal.
Customers also call the shop directly in order to reserve tables for lunch and dinner service and are allocated a table and time depending on availability. The nature of the busy lunch time also means that some customers order directly from the counter and pay for their meals. They advise the staff which table they are seated on in this situation.
The business employs around 6 waiting staff for our dining patrons. The existence of waiting staff itself indicate that the business caters for the dine in patrons.
The ambience within the restaurant is tailored for diners to enjoy a fresh meal prepared on premises in an open family friendly environment. Patron capacity and set up is specifically designed to provide the feeling of an open and welcoming family restaurant.
Food Menu
Our restaurant has a very big menu with an extensive range of dishes from burgers, sandwiches, chicken, salads, pasta, pizzas, seafood and steak dishes. We offer all day breakfast and dining menu with an extended range of lunch items. Customers can buy anything from coffee to a full meal.
The menus are fixed menus by the franchise, but individual stores are allowed to vary them as per customers’ dietary requests and palate preferences. Full preparation and cooking are involved in preparing more than 80% of the food items. Sautéed Mushrooms, salmon, corn and zucchini fritters, bacon, different omelettes, lasagne, Preparation of Pork for pork burgers, Beer Battered fish, Chicken Parmigiana, Chilli Beef, Pizzas are all example where full restaurant style preparation, cooking and presentation is required.
Most dishes require typically 5-10 minutes each to prepare and specials requiring up to 15 minutes cooking time. Dishes require a substantial amount of care and attention to be placed in each of them and with table service being provided to tables. Please also note that even if the menus are fixed menus by the franchise but the stores can vary So, given our extensive menu options and the preparation of their meals from scratch in the full-scale commercial kitchen demonstrates that the occupational caveat does not apply to our circumstances. Hence, we do not believe that our restaurant fit in this occupation caveat category of limited-service restaurant.
…
The available information about the applicant’s business, trading as The Coffee Club Fountain Gate, indicates that:
·it is located in the Fountain Gate shopping centre in outer Melbourne;
·it is part of The Coffee Club franchise and is a CBR (Café, Bar, Restaurant) model venue;
·the staff consists of the 1 owner/Manager, a part time Front of House Supervisor and a part time Back of House Supervisor, 1 part time Chef, 1 full time Cook (the nominee) and 2 part time Cooks, 1 part time Kitchen Hand and 1 full time Kitchen Hand, 1 part time Kitchen Hand and 2 casual Kitchen Hands, 3 part time Waiters and 1 casual Waiter, and 4 part time Baristas;
·it is open from 7 days per week, from 8.30am to 5.30pm from Monday to Wednesday, 8.30am to 9pm on Thursday and Friday, and 9am to 5pm on weekends, and offers dining in and take away services. The bulk of its turnover is from customers dining in;
·it has an all day menu and an evening menu, which is common to all Coffee Club venues throughout Australia. Menu items include all day breakfast dishes, cooked meals, coffee, tea, smoothies, alcohol and a children’s menu. Each month, the applicant has the discretion to add dinner items to the existing standard menu, which are created by the Chef from the existing pantry line ingredients. Special dishes are also added, at the applicant’s discretion, for festive occasions such as Mother’s Day and Valentine’s Day;
·takeway items are available, such as coffee, muffins and other pastries, but most items are prepared and consumed on the premises. The exception to this was during the periods of lockdown in Melbourne in 2020, when only take away service was permitted by the Victorian government;
·the premises operates a full commercial kitchen and has storage for fresh produce which is delivered daily. Meals are made from scratch after an order is placed, and can be modified at a diner’s request. There is table service, and patrons may pay at a cashier or at the table using EFTPOS once they have finished their meal; and
·the venue is licensed and at full capacity, seats 110 diners, with indoor and outdoor seating.
The Coffee Club website (accessed 9 July 2021) confirms that there are several models of franchise outlet:
·Café Bar Restaurants – it is stated that ‘customers come to CBRs for a complete dining experience. For The Coffee Club customers this means table service, a full menu which ranges across an all-day breakfast (for which we are famous), lunch, dinner and everything in between, brilliant barista-made coffee and irresistible desserts and snacks. This combination makes CBRs an easy destination choice for customers who want to dine with friends and family. CBRs are licensed;’
·Coffee Clubs – it is stated that ‘these are smaller outlets that provide a range of light meals, gourmet sandwiches (made fresh in your kitchen), drinks, cakes and barista-created coffees. Cafes provide counter service to customers, and are typically located in high traffic areas like malls or shopping centres. Attracting breakfast and lunch crowds, they are by far the most popular style of store available. You need an initial capital investment of around $500,000+.’
The Tribunal is satisfied from the evidence on the applicant’s website, and from Mr Pannu’s detailed evidence at hearing, that the applicant operates a CBR franchise through The Coffee Club. Although it is located at a shopping centre (Fountain Gate in metropolitan Melbourne), the Tribunal is satisfied that it is essentially a standalone venue within the centre which leases its premises from the shopping centre and is not located within any of the centre’s food courts. The Tribunal is further satisfied that although the business is part of a franchise, Mr Pannu has a degree of autonomy over its operations (including adding special items to the standard menu on a monthly basis and for special occasions), and that the food offered is cooked fresh as ordered, on a daily basis, and can be modified at a customer’s request. The Tribunal is further satisfied that it is licensed and predominantly offers table service for customers dining in, although it also offers lighter fare and beverages for take away service. The standard menu provided indicates that there is a relatively wide range of dishes offered, plus the special dishes that are selected each month for this venue by Mr Pannu and the head Chef and Cook.
Having had regard to the credible and detailed evidence of Mr Pannu at hearing, and the objective evidence available on the website of the applicant’s venue in Fountain Gate, and The Coffee Club general website, and acknowledging that some features of the applicant’s business involve factors identified in PAM3 as being features of a fast casual restaurant, the Tribunal is nevertheless satisfied that, on balance, the applicant does not operate a limited service or fast, casual restaurant, but a full service restaurant.
Given this, the Tribunal is satisfied that the nominated position is not excluded because it falls within the parameters of notes 7 or 8 of IMMI 18/048.
For these reasons, the Tribunal finds that the requirements of r.2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal accepts from the material provided, particularly the contract of employment between the nominee and applicant, that the position is a full time one.
From the oral and documentary evidence provided on behalf of the applicant, the Tribunal is satisfied that the position of Cook within the Fountain Gate CBR franchise of The Coffee Club, operated by the applicant, is a genuine position. As the Tribunal has already found, the applicant operates a full service restaurant and requires a number of Cook and Chef positions due to its opening hours and the menu range offered and is experiencing ongoing difficulties with recruiting suitably qualified and experienced kitchen staff. The Tribunal is further satisfied that the nominee has been working in the position of Cook in a part time capacity (although currently 38 hours per week) since 2017 and is a valued employee who has contributed to the applicant continuing to function during the COVID19 lockdowns in Melbourne and is now contributing to its recovery.
For these reasons, the Tribunal finds that the requirements of r.2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in an instrument for these purposes. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (r.2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (r.2.72(12)). In this case, the applicant is not an overseas business sponsor and r.2.72(11) must be met.
The Tribunal is satisfied that the nominated occupation of Cook is not specified in an instrument, and that the applicant has provided a copy of the contract of employment between it and the nominee dated 19 March 2018.
For these reasons, the Tribunal finds that the requirements of r.2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where r.2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: r.2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: r.1.03.
·the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT) (currently $53,900), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(d) and r.2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in r.2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(f) and r.2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: r.2.72(15)(g).
The current employment contract provides that the nominee will be paid a base salary of $56,160 per year plus superannuation. As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.2.72(15) do not apply.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
At hearing, Mr Pannu confirmed that it is a condition of the franchise agreement with The Coffee Club that all employees at all venues must be paid at least the appropriate rate for their position according to the Restaurant Industry Award, regardless of their visa status.
The Tribunal is further satisfied that the nominee’s contract of employment has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).
Accordingly, the Tribunal is satisfied that the nominee's terms and conditions will be no less favourable than the terms and conditions that would apply to an equivalent Australian employee, and that the requirements of r.2.72(18)(a) are met.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: r.2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and r.2.72(18)(b) applies. There is no evidence before the Tribunal to suggest that the applicant has engaged in discriminatory recruitment processes; particularly given the Tribunal’s findings below in relation to Labour Market Testing, and Mr Pannu’s evidence at hearing of his ongoing recruitment efforts.
Labour Market Testing
Section 140GBA requires a person 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 positon. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/059. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s.140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s.140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; 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 of 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.
The Tribunal is satisfied that the applicant was not exempt from having to undertake LMT for any of the reasons set out in the relevant written instruments.
The Tribunal is satisfied from the Department’s file that the applicant provided evidence with its nomination application that indicated that:
·it conducted LMT from 12 February 2018 for 30 days at least;
·the advertising was in English and the full time position was advertised internally and also on the Career One website, for which fees were payable. The details of the employer and salary range was given in the advertisement(s); and
·there were no suitable responses.
A copy of an invoice from CareerOne for the advertisement, and the advertisement itself accompanied the nomination application.
The Tribunal is therefore satisfied that the applicant satisfies ss.140GBA(5) and (6) in relation to the manner and duration of LMT, and that evidence of this was accompanied the nomination application.
The Tribunal is further satisfied that the nomination was accompanied by information that there were no Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the 4 months prior to the lodgment of the nomination application and therefore s.140GBA(4A) does not apply.
Finally, the Tribunal is satisfied, from the evidence set out above, and from Mr Pannu’s credible oral evidence at hearing, that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) was (and is) not readily available to fill the nominated position. The Tribunal notes that this conclusion is supported by independent evidence that there are ongoing skills shortages of Chefs and Cooks in Australia, such as recent newspaper and industry specific articles referring to a significant shortage of hospitality staff post-pandemic in most states of Australia (including Victoria). See for instance:
·Border bans exacerbate hospitality skills shortage (afr.com) (published 14 January 2021); and
·Skills shortage now forcing hotels to reduce service inventory - Hotel Management (published 22 April 2021)

Accordingly, the Tribunal finds that s.140GBA(3)(d) is met.
For these reasons, the Tribunal is satisfied that the labour market testing requirements in s.140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s.140GB(1)(b) in relation to a subclass 457 or subclass 482 visa holder or an applicant or proposed applicant for a subclass 482 visa. The nomination training contribution charge is a charge imposed by s.7 of the Migration (Skilling Australians Fund) Charges Act 2018, and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018. Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s.140GB(2)(aa).
The Tribunal finds that as the nomination in this case was lodged on 21 March 2018, prior to 12 August 2018, the applicant is not liable to pay a nomination training contribution charge.
For these reasons, it finds that the requirements of s.140GB(2)(aa) are not applicable.
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.
Alison Mercer
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)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.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one 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.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) … ,
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2021] AATA 3114

12 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Remedies