AGN RATTAN PTY LTD (Migration)

[2021] AATA 4891

AGN RATTAN PTY LTD (Migration) [2021] AATA 4891 (24 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AGN Rattan Pty Ltd

CASE NUMBER:  1833327

HOME AFFAIRS REFERENCE(S):            BCC2018/891799

MEMBER:Namoi Dougall

DATE:24 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 24 November 2021 at 11:58am

CATCHWORDS
MIGRATION–nomination – Pastrycook – nominee does sufficient preparing and baking of pastry goods – no Australian citizen or permanent resident performing equivalent work at the same location – position associated with the nominated occupation is genuine – labour market testing requirements in s.140GBA are met – decision under review set aside

LEGISLATION
Fair Work Act 2009 (Cth)
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 2.57, 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2.The applicant applied for approval on 24 February 2018. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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.

3.The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that a majority of the tasks of the position would substantially align with the tasks of the nominated occupation of Pastrycook (ANZSCO 351112). The delegate referred to the applicant operating a franchise shop and that the nature of the franchise was to regulate so as to remove complexity and ensure conformity. Nor was there sufficient information for the delegate to assess the responsibilities of existing employees or whether the nominee does sufficient preparing and baking of pastry goods.

4.Mrs Neelima Rattan, a director of the applicant, appeared before the Tribunal on 9 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hafiz Faizan.

5.The applicant was represented in relation to the review by its registered migration agent.

BACKGROUND

6.The business nomination indicates that the nominee will be employed in the nominated occupation of Pastrycook on a salary of $55,000 for 38 hours a week at the location of Auburn. At the hearing Mrs Rattan stated that she bought The Cheesecake Shop in Auburn in 2016. The business employs 4 staff including herself: she is the owner/operator and looks after paperwork and she does customer service and other aspects of the business. Her husband looks after: stocking; product management; delivery; picking up supplies from suppliers and head office; glazing and decorating mainly cheesecakes; ingredient orders; quality checks; wastage, as well as customer service. Also employed is a staff member responsible for customer service and small jobs such as making chocolates and sometimes cleaning, as well as, managing online orders from UberEATS and Menulog.

7.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

8.The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved 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, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.

The nomination must comply with the prescribed process

9.Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r 2.73.

10.The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s 140GB(1)(b) of the Act and has identified in the nomination a Subclass 457 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and the fee has been paid. The applicant has identified Mr Hafiz Faizan in the nomination. The nomination include the location of Auburn in Sydney, NSW, at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Pastrycook (351112). For these reasons the requirements of r.2.72(3) are met.

Nominator is a standard business sponsor or party to a work agreement

11.Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.

12.Departmental records indicate that the applicant was approved as a standard business sponsor on 15 May 2018 and that the agreement is still valid. The Tribunal is, therefore, satisfied that the applicant is a standard business sponsor.

13.For these reasons the requirements of r 2.72(4) are met.

Identification of the nominee

14.Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

15.The applicant has identified in the nomination Mr Faizan as the nominee to work in the nominated occupation of Pastrycook (351112). For these reasons the requirements of r 2.72(5) are met.

Requirements for existing Subclass 457 visa holders

16.As the nominee is not the holder of a Subclass 457 visa, the requirements of r 2.72(6), (7A) and (10)(g) do not apply.

Information about the nominated occupation

17.Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;

·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

·the location(s) at which the nominated occupation is to be carried out.

18.The applicant has provided the name of the occupation, Pastrycook, and its corresponding ANZSCO code of 351112 and the location in Auburn, Sydney, which is where the occupation will be carried out.

19.For these reasons the requirements of r.2.72(8A) are met.

Certification relating to conduct under s 245AR(1)

20.Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.

21.Having perused the Department’s file, the Tribunal is satisfied that the applicant has provided the required certification as part of its nomination.

22.For these reasons the requirements of r 2.72(8B) are met.

No adverse information known to Immigration

23.Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

24.There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to Immigration, either about the applicant or a person associated with the applicant.

25.For these reasons the requirements of r.2.72(9) are met.

Specified occupation

26.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: reg 2.72(10)(b).

27.Several inapplicability conditions or caveats are specified in the instrument. The application of the condition, or caveat, means that an occupation specified in the skill shortage list where the condition applies to the nominated position, will be excluded from further consideration. The specified occupation of Bakers and Pastrycooks (ANZSCO 351112), appears on the Short-term Skilled Occupation List. The caveats or conditions which apply to the occupation are contained in item 17 of paragraph 8 of the instrument, which describes when the occupation will not be applicable to persons who work in certain positions and which are where the position:

a.Relates to mass or standardised production, including a position based in a franchise or factory.

b.That involves:

i.Full or partial production of food product to another location; or

ii.Predominantly involves the use of pre-prepared food product from another location.

28.The caveats are worded generically and not otherwise defined, so that consideration needs to be given to the context provided and the relevant facts and circumstances of the position when considering the application. It will not be the situation for example, that every position in a franchise for the occupation nominated will be automatically excluded, once the details and job description are fully disclosed and explained.

29.Provided to the Department was a statement of Mrs Rattan addressing r.2.72(10)(aa). In the statement Mrs Rattan submits that the role of Pastrycook fits within the scope and scale of the business which specialises in the preparation and sale of a broad range of specialist cakes and desserts. The role is intrinsic to the business and without it the business cannot function. The products produced by the business are perishable and, therefore, need to be produced on a daily basis so the cake production is done on the premises. They are not involved in prepared food products and do not used semi baked items. The statement also claimed that the business also takes orders from customers for customised cake products and, therefore, is more specialised than mass produced.

30.The statement also indicates that the pastrycook starts early before the shop opens to produce freshly baked product. Production starts from scratch with the pastrycook preparing raw ingredients, measuring, mixing, shaping, baking, decorating and storing. The statement also claims that the business follows disciplined procedures for production which are guided by the main office but the flavours, quantity and type of cakes that are produced depend on the demand from customers, occasions and shop sales.

31.In relation to customised cakes the statement referred to The Cheesecake Shop website and states that the business makes cakes to their customers’ specific requirements which are promoted on the website at ‘Cake Works’. They have online orders as well as walk-in customers. They also take orders for functions such as birthday parties, anniversaries, festivals and other functions.

32.Provided to the Tribunal with the application was the Franchise Agreement which contains the following clauses:

3.18 Image

Maintain the Franchised Operation throughout the Term in absolute compliance with the Image, the System and the Manuals and as otherwise instructed by the Franchisor…

3.20 Product Preparation

(a) Prepare and store all Authorised Products and ingredients strictly in accordance with the Manuals and any standards, procedures and recipes specified by the Franchisor from time to time.
(b) Use only ingredients which are of the standard and quality approved by the Franchisor from time to time and as specified on the Authorised Brand Listing…

9.0         Authorised Products
9.1         Specified Food Products
The Franchisee must:
(a) sell the Authorised Products from the Franchised Operation;
(b) at all times stock the range of Authorised Product required by the Franchisor;
(c) maintain an adequate quantity of Authorised Products so as to be able to meet the anticipated public demand;
(d) not offer for sale any Unauthorised Product.
9.2         Display
The Franchisee must only display the Authorised Products in the manner specified by the Franchisor.
9.3         Preparation & Storage
The Franchisee must prepare and store the Authorised Products strictly in accordance with the Franchisor’s prescribed recipes and procedures. The Franchisor will make any improvements in, and developments of the Approved Products available to the Franchisee…
9.8         Seizure of Unauthorised Goods.
If the Franchisee has Unauthorised Ingredient or Unauthorised Product on the Premises, the Franchisor may, without any payment or liability to the Franchisee:
(a) seize and destroy the Unauthorised Ingredient or Unauthorised Product and/or remove them from the premises;
(b) direct the Franchisee to immediately remove and/or dispose of the Unauthorised Ingredient or Unauthorised Product even if immediate removal/disposal renders them unusable;
(c) seize, remove and destroy any Authorised Product the Franchisor reasonably believes has been made using Unauthorised Ingredient.

33.At the hearing Mrs Rattan stated that the nominee’s role in the business was based all around cooking. He: makes the production and baking plan; cooks all types of cakes; rotates and dates stock; makes toppings and applies them onto the cakes; stores cakes at the correct temperature; makes ganache and glazes; and makes fillings such as chocolate mousse and vanilla mousse.

34.At hearing the Tribunal asked where the ingredients came from for the cakes and Mrs Rattan stated that for core cakes the ingredients come from UNS or head office but for the customised cakes she has her own suppliers. The recipes from the core cakes come from head office but a lot of the business is from customised cakes, about 20% to 30% were customised cakes, and the business is not provided any recipes or ingredients by head office; the customised cakes are provided by the business outside of head office. The Tribunal asked if the Franchise Agreement allows for the making of the customised cakes which are outside of the franchise cakes, referring to there being authorised and unauthorised products. Mrs Rattan stated yes. Mrs Rattan confirmed there is no agreement for customised cakes and then added that it is the same base but the decorations are different and the business is allowed to decorate differently with outside product. The Tribunal asked if that meant the business still used the franchise’s recipes and Mrs Rattan agreed but added that the customers ask for different flavours and decorations. She also changes the standard sizes, therefore, this changes the ingredients’ weights and amounts but the proportions stay the same. Sometimes the customer may want a tiered cake which requires working out what ingredient amounts are required for each tier. The customer may require 3 or 4 tiers such as for wedding cakes.

35.At the hearing Mrs Rattan stated she sells about 250 cakes including customised cakes which would be 30 to 40 a week. The price of customised cakes can range from $50 to $400 whereas standard cakes are $40. The Tribunal asked how much time the customised cakes take to make and decorate. Mrs Rattan stated customised cakes take more time but in the decorating. The nominee bakes 250 to 300 sponges in 7 hours. Each day he bakes a different type of standard cake. The Tribunal referred to him needing 7 hours to bake a standard cake in batches and asked when he gets time to do customised cakes. Mrs Rattan said sponges and mudcakes take all day, baked cheesecakes half a day each, fresh cheesecake takes up to 3 hours and the rest of the time is for customised cakes.

36.At the hearing the Tribunal asked the nominee what he did on a daily, weekly or monthly basis. The nominee stated that he works 5 days a week. Day 1 he prepares for the entire week by preparing a baking plan and he starts to bake sponges. Day 2 he makes mudcakes which takes all day. Day 3 he bakes cheesecakes or continental cheesecakes. If there is a week where the business requires less sponge cakes, he bakes carrot, apple and pear cakes and pavlovas. In the 3-day plan he also makes cupcakes, egg and eggless sponges and smaller mudcakes with different types of decorations. Once the sponge cakes are cooled down he makes ganache including white chocolate or chocolate. He decorates cakes, dates them and puts them in the freezer to cool and he rotates the stock. During the next 2 days he decorates all cakes that come in as customised cakes such as wedding and birthday cakes. For the decorations they make chocolate mousse or use strawberry and fruit to decorate.

37.At the hearing the Tribunal asked where he got the recipes and the nominee stated that he does not get any special recipes or ingredients. The birthday and wedding cakes are decorated as required by the customer using the business’s ingredients. The Tribunal asked if he used completely different recipes or if he adapted recipes from head office and the nominee stated that the base is the same and the creams are the same but the customer states what they want for decoration and what else they want changed. Head office provides bases such as vanilla, chocolate or strawberry but if a customer wants something different such as banana he can change the base as well.

38.At the hearing the Tribunal asked how much of his time is taken up with customising cakes and the nominee stated 1 day is used to decorate cheesecakes and another day is used to decorate customised cakes. The Tribunal sought clarification as to the time the nominee uses for customised cakes and he stated that some weeks it is 1 day and other weeks it is 2 days. During the weeks where he spends 1 day on the customised cake he then spends more time on decorating cheesecakes.

39.At the hearing Mrs Rattan stated that due to the process the business uses there are no premix or prepared ingredients, the cakes are all made from raw materials. Although they get recipes from head office she could not produce 300 sponges in 7 hours, she needs a skilled person to do that.

40.The Tribunal was subsequently provided with Stock Variance Reports for 1 May 2021 to 31 May 2021 and 18 October 2021 to 11 November 2021. The reports indicated that the business sold 112 customised cakes valued in total at $6,557 in May 2021 and 87 customised cakes valued in total at $5,254 in the October/November 2021 period.  Also provided were 33 invoices from 10 November 2021 to 27 November 2021 for customised cakes sold for a price range from $32.95 to $165 each.

41.The Tribunal was subsequently also provided a submission from the General Manager – Marketing and Operations at The Cheesecake Shop Pty Ltd which states, amongst other things, that The Cheesecake Shop encourages franchisees to broaden their range and promote custom-ordered cakes and that some of the specific designs for the Auburn franchise are promoted on their Instagram account.

42.The Tribunal recognises that the applicant, as part of The Cheesecake Shop franchise, does involve standardised production but not for all of the product sold by the applicant. On the evidence the Tribunal is satisfied that the nominee is responsible for the making of customised cakes outside of the franchise selection which are an important part of the applicant’s business as they contribute significantly to turnover. Therefore, the Tribunal is satisfied that these customised cakes are not mass produced. Further, the Tribunal accepts Mrs Rattan’s evidence that the customised cakes and franchise cakes cannot be produced without the skills of the nominee. The Tribunal is also satisfied that the franchise cakes are baked from scratch using raw ingredients. Therefore, the Tribunal is also satisfied that the production of the food product is not done at another location or involves the use of pre-prepared food product.

43.For these reasons the requirements of r 2.72(10)(aa) are met.

44.The relevant instrument does not require the nominated occupation of Bakers and Pastrycooks to be supported in writing to the Minister, by a specified organisation before the nomination. For these reasons the requirements of r 2.72(10)(b) are not applicable.

Terms and conditions of employment

45.Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009 (Cth).

46.A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: reg 2.57(3A). ‘Earnings’ is defined in r 2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

47.In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r 2.72(10AA).

48.These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: reg 2.72(10AB). The nominee’s proposed earnings of $55,000 are less than those specified in the relevant instrument.

49.The evidence before the Tribunal indicates that the nominated position is currently filled by the nominee and that there are no Australian citizen employees in the applicant’s business performing equivalent work at the same location.

50.The employment contracts dated 19 February 2018 and 10 August 2021 both signed by the nominee and Mrs Rattan indicate that the applicant’s salary will be $55,000 plus the superannuation guarantee. The financial statements for the applicant provided to the Tribunal were for the financial years ending 30 June 2019 and 2020 and a draft profit and loss statement for the financial year ending 30 June 2021. The financial statements for the financial year ending 30 June 2020 indicated that the profit before tax for the financial year ending 30 June 2019 was $84,832 but the accumulated loss from the beginning of the year was $106,618 meaning there was still an accumulated loss of $21,785 for the financial year ending 30 June 2019. That loss was carried forward to the financial year ending 30 June 2020 reducing the profit for that year to $23,833. The draft profit and loss statement for the financial year ending 30 June 2021 indicates that the applicant made a profit of $213,727, however, cost of sales have not been taken into account which may significantly reduce the applicant’s turnover. After the hearing the Tribunal was provided with an explanation as to the calculation of closing stock and opening stock and the Tribunal is satisfied that the net profit of the applicant is $213,727 and the retained profits are $460,188 so the applicant has the financial capacity to provide the nominee as part of his terms and conditions of employment, the proposed salary package.

51.Having regard to IMMI 09/113, it appears to the Tribunal that the occupation of Pastrycook is covered by the Baking Industry Award. The occupation of Pastrycook appears to be a level 7 occupation under this Award, which lists the ordinary weekly rate for full-time work as $619.90. This equates to $32,234.80 per annum. Therefore, the Tribunal is satisfied that the nominee’s proposed salary of $55,000 is no less favourable than that which would be offered to the relevant Australian equivalent.

52.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 Australian employee performing equivalent work at the same location.

53.For these reasons the requirements of r 2.72(10)(c) are met.

Base rate of pay

54.Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident to be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.

55.However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r 2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: reg 2.57. The meaning of ‘earnings’ is provided in r 2.57A.

56.Likewise, the requirement in r 2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r 2.72(10AB).

57.The nominee’s annual earning is less than the amount of $250,000 specified in the relevant instrument.

58.Based on the above and on the information and findings made in relation to r 2.72(10)(c), the Tribunal is satisfied that the nominee’s proposed salary will be $55,000 plus superannuation guarantee, and that this is greater than the TSMIT of $53,900. The Tribunal, therefore, finds that r.2.72(10)(cc) is met.

Certification under reg 2.72(10)(e)

1. As part of the nomination, the applicant must certify various matters in writing: reg 2.72(10)(e). These include that:

   ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO;

   ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity; and

   ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.

   60.The Tribunal is satisfied that the relevant certifications have been made in the nomination form. For these reasons the requirements of r.2.72(10)(e) are met.

   Position must be genuine

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

   62.The position description provided to the Department and Tribunal for the nominated occupation is as follows:

   Maintaining a clean environment at the work place.
   Wear a neat and clean uniform and be equipped with the required equipment.
   Preparing fruits, cheese, creams for filling and baking.
   Preparing the ingredients for a variety of our product line.
   Collect the ingredients and weigh them as according to the recipe for variety of the product line.
   Mix the ingredients as required for a particular time in the mixing machine and then transfer the mixture to the relevant cooking vassals for further cooking and shapes.
   Bake the cakes.
   Use of Ovens and utensils and use artistic skills to shape the prepared mixtures and present them as per the seasonal requirements etc.
   Prepare the fillings and fill in as per the quantity required.
   Decorate the cakes, store them at the right temperature, mark expiry dates.
   Rotate Stock.
   Work independently on orders and Design various customized cakes

   63.The Tribunal has had regard to the ANZSCO occupational dictionary with regard to the position of Pastrycook (ANZSCO 351112) and the tasks listed are as follows:

   • Managing all the materials for product manufacturing
   • Checking the type of pastries and cakes amounts to be produced through the scheduler
   • Preparing all sorts of cakes, pies, cookies, chocolates
   • Managing kitchen hygiene, and checking machine quality
   • Training junior pastry cooks, apprentices and trainees
   • Weighing and mixing ingredients
   • Mixing of ingredients according to its coefficient of frictions and product variety
   • Controlling and monitoring of temperature of dough using different amount of water, ice cubes etc.
   • Controlling of dough weight for different product
   • Kneads, matures, cuts, moulds and shapes pastry dough and operates dough baking and rolling equipment
   • Controlling the temperature and humidity of the fermentation room, and monitoring of the whole fermentation processes
   • Preparing of the ingredients for decoration and pattern making, icing, glazing, coating and decorating
   • Complying all the storage procedures according to product features
   • Monitoring and controlling of stock and maintaining of desired stock level required by making & decorating additional products

   64.At the hearing the Tribunal asked the nominee what else he did apart from baking and the nominee stated he glazes the cheesecakes when he has time. The nominee states his major role is to bake and glaze. If his manager asks what ingredients are required to be ordered he informs his manager and helps them order. If he does not have time to finish baking, he puts in the extra hours to complete tasks. The Tribunal asked about OH&S and cleaning and the nominee stated that this is also part of his role and he cleans the shop in the morning to make it presentable. They use vinegar to clean all utensils and bowls which is done every time, before he starts baking. Everything is cleaned at the end of the day including utensils and benches. The baking plan is made by himself as he knows what ingredients there are to be used and he counts what is in the cool room to see what is still to be sold and from that works out what needs to be baked. If he does not need more of one product, he will bake more of another. The Tribunal asked if he is responsible for storing at correct temperatures and in the correct way and the nominee stated he does double check that the cakes are stored at the correct temperature. He rotates cakes from chiller to the cool room and makes sure the temperature in the cool from is 4 to 5 degrees C. When ingredients are delivered he again checks the temperature before putting them into the cool room. If cream cheese is delivered in a refrigerated truck at more than 4 degrees C, then he rejects the stock.

   65.At the hearing the nominee summarised again his tasks as follows: OH&S: cleaning; baking; stock takes, checking ingredients are within use by dates and informing management of what is needed; stock counting and rotating. At the hearing the Tribunal asked if he does these tasks on his own or with Mrs Rattan’s spouse and the nominee stated that Mr Rattan assists him on a monthly basis and he does the tasks on a daily basis.

   66.On the evidence set out above the Tribunal is satisfied that the nominee performs the majority of the tasks listed in ANZSCO for the occupation of Pastrycook (ANZSCO 351112).

   67.For these reasons the requirements of r 2.72(10)(f) are met.

   Employment under contract

   68.Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.

   69.The applicant has provided a signed contract of employment dated 10 August 2021. For these reasons the requirements of r.2.72(10)(h) are met.

   Work agreements

   70.As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.

   Labour market testing

   71.Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB–140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

   72.For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/03. In addition:

   ·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

   ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

   73.The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.

   74.The business nomination application stated in relation to labour market testing that the applicant did 1 month of testing from 31 January 2018. Provided to the Department was a copy of an advertisement for a Pastrycook and tax invoice for the placement by the applicant of the advertisement on the Seek website on 31 January 2018. Also provided were 16 CVs of applicants stated to have been unsuccessful in applying for the position. A variety of reasons were handwritten on the CVs mainly relating to inappropriate visas.

   75.The evidence before the Tribunal (and provided to the Department at the time of application) indicates that the applicant undertook paid advertising for the nominated position and the Tribunal is satisfied that the applicant has undertaken labour market testing, within the specified period. The Tribunal is, therefore, satisfied that the applicant has been unable to successfully recruit from within the Australian labour market for the nominated position.

   76.For these reasons, the labour market testing requirements in s 140GBA are met.

   77.For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

   DECISION

   78.The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

   Namoi Dougall
   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.