AZOOBA THE FOOD WONDERLAND PTY LTD (Migration)

AZOOBA THE FOOD WONDERLAND PTY LTD (Migration) [2024] AATA 1064 (19 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Azooba The Food Wonderland Pty Ltd
REPRESENTATIVE:  Mr Suraj Handa (MARN: 0637649)
CASE NUMBER:  2111773
HOME AFFAIRS REFERENCE(S):         BCC2020/2036294
MEMBER:Alison Mercer
DATE:19 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 19 April 2024 at 4:53pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Chef – genuine need – 2 large Indian/Pakistani restaurants – nominee also performs tasks carried out by a Cook – ANZSCO tasks description – specified occupation – LIN 19/049 – limited service restaurant – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 17 August 2021 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Azooba The Food Wonderland Pty Ltd, applied for approval of its nominated position of Chef on 6 August 2020. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(a) of the Regulations, which required that there was a genuine need for the nominee to be employed in the position, under the direct control of the applicant. The delegate did not accept that the applicant’s business genuinely needed a Chef, or that the nominee would carry out the full range of duties listed for a Chef in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary, given the size and structure of the business, and fact that the nominee had previously worked in the business as a Cook (and it appeared that he continued to do so). The delegate therefore refused to approve the nomination.
The Tribunal received a review application on 3 September 2021. It was made on behalf of the applicant by a director of the applicant company, Mr Tarwinder Singh, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Singh appointed a registered migration agent, Mr Suraj Handa, as the applicant’s representative and authorised recipient for correspondence.
On 16 October 2023, the Tribunal wrote to Mr Singh via the agent to invite him, pursuant to s.359(2) of the Act, to provide updated and current information demonstrating that the applicant met all of the relevant criteria in r.5.19 (not merely the criterion that the delegate found was not met).
On 30 October 2023, the Tribunal received the following material from the applicant’s agent:
·information from the Australian Securities and Investments Commission (ASIC) for the applicant;
·organisational chart for the applicant;
·applicant’s food and liquor licences;
·letter from the applicant’s accountant;
·applicant’s profit and loss statement for 2022/2023;
·applicant’s Business Activity Statements (BAS) for period January 2022 to June 2022; and
·request for extension of time to provide additional information.
On 15 November 2023, the applicant’s agent provided the following additional information:
·position description;
·employment contract for the nominee;
·financial statements and company tax returns for the applicant for 2021/2022 and 2022/2023;
·updated letter from the applicant’s accountant, March 2023;
·invoice dated 22 June 2022 for training provided to the applicant; and
·employer reference letter.
The reference letter is dated 21 January 2021 and is from Mr Tarwinder Kullar, who states as follows:
…
This is to certify that Mr. Jagdeep Singh was a permanent employee of Azooba The Food Wonderland Pty Ltd at Heathcote since 2018. He started work on a part time basis as cook and got his 457 visa granted as cook. Later we promoted him to the position of chef from when his 457 visa got expired. Even when he was working as a cook , he was performing similar duties as of chef . He has been very important member of our team till now.
During this period, His services were found to be satisfactory in carrying out the job duties, his responsibilities were to:
1. Planning Menu
2. Check the quantity quality of received products
3. Order or requisition food or to supplies needed to make sure efficient operation
4. Supervise or coordinate activities of cooks or workers engaged in food preparation
5. Inspect supplies, equipment, or work areas to make sure conformance to established standards
6. Determine how food should be presented create decorative food displays
7. Instruct cooks or to workers in the preparation, cooking, garnishing, or presentation of food
8. Estimate amounts and costs of required supplies, like food ingredients
9. Collaborate with to His personnel to plan develop recipes or menus, taking into account such factors as seasonal availability of ingredients or the likely number of customers
10. Analyze recipes to assign prices to menu items, based on food, labor, and overhead costs
11. Prepare cook foods of all types, on a regular basis or for special guests or functions
12. Determine production schedules staff requirements necessary to make sure timely delivery of services
13. Recruit and hire staff, like cooks to kitchen workers
14. Meet with customers to discuss menus for special occasions, like parties, or banquets
15. Demonstrate new cooking techniques or equipment to staff
16. Arrange for equipment purchases or repairs
…
On 7 February 2024, the Tribunal wrote to Mr Singh via the agent to invite him to attend a hearing on 13 March 2024. The Tribunal requested that any additional material to support the case was provided by 6 March 2024.
On 6 March 2024, the Tribunal received a hearing response indicating that on behalf of the applicant, one of its directors, Ms Faiza Waqar, would attend the hearing, together with the applicant’s agent.
On 12 March 2024, the Tribunal received the following additional material:
·legal submissions dated 7 March 2024 from the applicant’s agent;
·current organisational chart for the applicant; and
·evidence of training expenditure by the applicant.
The applicant’s agent made the following points in his submissions:
…
This is a submission in the case of my client, whose application for a Employer Nomination Scheme visa (subclass 186) was refused by the Department of Home Affairs on 17 Aug 2021. The applicant has lodged an appeal against the refusal order, which will be heard by the Tribunal on 13 March 2024.
The applicants claim that the delegate’s decision is not fair and justified.
SUBMISSION
The nominee – Jagdeep Singh has been genuinely employed and working as chef with AZZOBA [sic] THE FOOD WONDERLAND PTY LTD since 2018. He initially joined as a cook on part time bases. He performed very well on his job and got employed as full-time employee. There after the nominee was promoted as a chef and he has been continuously working there with regular salary as agreed and settled in employment agreement. He was the only chef working in the business at the time of joining his employment. No doubt his job description and designation in the employment was a full-time chef but he was also looking after for multiple tasks of a chef and a cook for the growth of the business. Hence the duties of chef and cook were jointly explained by the nominee in his job description. But he was working as full-time employee supported by relevant documents of his payslips and tax documents.
There is a genuine need to employ a full-time chef in business to look after and manage the business affairs, which is growing so rapidly.
There has been significant change in the business management. Mrs Faiza Waqar took the charge of new Director of the business on 01.11.2021 and she has been making significant improvements in the business. The business has also employed three more chefs along with the nominee to work for more efficiency. The annual growth of the business has been almost doubled in the year 2023 in comparison with the year 2022 as reflected from the annual turn over of the business.
The business has been spending requisite amount on the training of the employees in the business. The training documents and receipts for the year 2022 with organisation chart is attached herewith.
Mr Tarwinder Singh the previous director might not use his due diligence for providing the requisite information and documents to the department of home affairs, but the nominating business should not suffer loss due to acts and conduct of another person.
It is submitted that the decision of the delegate should be reconsidered and set aside. Thank you.
…
On behalf of the applicant, Mrs Faiza Waqar appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Jagdeep Singh. The applicant’s agent also attended the hearing. He provided copies of the nominee’s payslips showing he is being paid as a Chef, copies of the nominee’s bank records showing wage transfers, copy of the nominee’s positive skills assessment as a Chef and a Cook, issued by Trades Recognition Australia on 29 July 2020, and copies of the nominee’s tax returns for the 2020/2021 and 2022/2023 financial years.
Ms Waqar told the Tribunal that she took over the business in late 2021, during the COVID19 period in Melbourne. She said that the previous owner, Mr Tarwinder Singh, had a different business plan to her, and had operated the venue in Tullamarine (trading as Bar B Q Lounge) as a dining venue focussing on a buffet of Indian food, whereas since she took over, she had expanded the menu to include Pakistani dishes. Ms Waqar said that she had also increased the number of a la carte (as opposed to buffet) dishes available at the Tullamarine and Brunswick venues. She estimated that 60 to 70% of customers elected to dine in and order from the a la carte menu. Ms Waqar said that the business also offered take away dishes and catering for large group functions, either in-house or off-site. In response to the Tribunal’s query, Ms Waqar said that the Tullamarine venue could seat 150 diners and the Brunswick venue could seat 120 diners. Ms Waqar said that she had been in hospitality for approximately 9 years and already ran the Brunswick venue when she took over the Tullamarine venue from Mr Singh in 2021. To the best of her knowledge, Mr Tarwinder Singh established the Tullamarine restaurant in 2012 and the nominee Mr Jagdeep Singh joined around 2018 as a Cook on a part time basis, in time becoming a Chef on a full time basis.
Ms Waqar told the Tribunal that the organisational chart she provided was for the Tullamarine venue only, where the nominee was employed. She updated the Tribunal to advise that the part-time Chef listed in the chart had recently left the business, and she had not replaced him yet, as it appeared that the venue was able to operate with its existing 3 full time Chefs (including the nominee) and 1 part time Cook. Ms Waqar confirmed that both venues were open 7 days per week, and served lunch and dinner on Mondays, Tuesdays and weekends, and dinners on the other days of the week. They also had functions both in-house and off-site. In response to the Tribunal’s query, Ms Waqar said that in her experience, the difference between Cooks and Chefs (despite the occupations having a number of common tasks) was that Chefs had more of a managerial role regarding the kitchen staff and were involved in the planning of the menu and ordering of the food. In contrast, Cooks generally cooked to a recipe, but did not design or plan menus for the business and were not responsible for ordering food supplies. Ms Waqar said that a Chef could undertake a Cook’s role but a Cook could not undertake a Chef’s role, for these reasons. In response to the Tribunal’s query about why the business had 3 Chefs and only 1 part time Cook, which suggested that the Chefs must do a lot of the cooking, Ms Waqar conceded that they did but said that the Chefs nevertheless were also responsible for menu planning (in consultation with her), food ordering and training and rostering staff. The Chefs were in charge of the kitchen, while her Restaurant Manager was in charge of front of house. The Tribunal went through the duties for a Chef listed in the ANZSCO dictionary and Ms Waqar confirmed that her Chefs undertook the majority of these duties. She told the Tribunal that given its expanded operations since she took over, the business required 3 Chefs due to being open 7 days per week and also undertaking catering for functions.
The Tribunal discussed with Ms Waqar the occupational caveats applicable to the occupation of Chef; in particular, that the position could not be located in a ‘limited service restaurant.’ The Tribunal went through the Department’s policy guidelines on what factors suggested that a venue was a limited service restaurant. Ms Waqar responded that her business was not a limited service restaurant at either venue, as both venues were licensed, could seat a substantial number of diners, offered a la carte menus as well as buffets, had table service and required diners to pay after having eaten.
The Tribunal noted that it had to be satisfied that the applicant had the financial capacity to employ the nominee for at least 2 years on a full time basis at the Annual Market Salary Rate (AMSR). It further noted that although the applicant’s financial statements for 2022/2023 showed a significant increase in its turnover, they also showed a significant amount of net loss (over $366,000), which potentially called into question its financial capacity. The Tribunal noted, however, that the business had a substantial wages expense for that financial year, and acknowledged that it had provided evidence of having paid the nominee on a full time basis as a Chef for several years. Ms Waqar said that the business had expanded and discussions with her accountant made her confident that the business would be able to pay the nominee on a full time basis for at least 2 years. She noted that wages expenses were high in 2022/2023 due to having to hire a lot of casual wait staff, but she expected that these expenses would not be as great this financial year.
The Tribunal also discussed with Ms Waqar and her agent that its view was that the AMSR in this case should be determined by reference to the Restaurant Industry Award, which provided that the full time rate for a level 5 employee (which included fully qualified Chefs) was approximately $56,451 per year. It noted that while this amount exceeded the Temporary Skilled Migration Income Threshold (TSMIT) of $53,900, it also exceeded the nominee’s salary of $54,000, which meant that one of the nomination approval criteria was not met (unless the Tribunal considered it reasonable to disregard this requirement). The Tribunal agreed to grant additional time after the hearing for Ms Waqar and the agent to make further submissions on this issue, noting that it would assist the Tribunal to have a letter from the applicant’s accountant on this issue and the issue of the applicant’s financial capacity to continue to employ the nominee for at least 2 years on a full time basis.
The Tribunal then took evidence from the nominee, Mr Jagdeep Singh, who gave his evidence without having heard Ms Waqar’s evidence. He described his work history with the applicant to the Tribunal, noting that he started there as a Cook on a part time basis in or around October 2017 while undertaking his studies in Commercial Cookery and Hospitality. He subsequently became full time after he finished his studies, and obtained a positive skills assessment from Trades Recognition Australia as a Chef in July 2020, in part based on his qualifications but also on his employment experience with the applicant from May 2019 to July 2020. The nominee ran through his duties as a Chef, noting that while he and the other 2 Chefs did a lot of cooking, they also undertook staff rostering and training, food ordering and menu planning, which the Cook did not do. He said that he did not generally get involved in the offsite catering jobs but he and the Chefs were involved if they had an onsite function, including adapting menu items to take account of the preferences and/or dietary restrictions of customers.
On 27 March 2023, the Tribunal received the following additional submissions from the applicant’s agent:
…
The applicant - Faiza Waqar (Director & Secretary) Azzoba [sic] the Food Wonderland Pty Ltd took the charge of this organization after the Covid-19 on the 1st of November 2021. The impact of the pandemic has changed the way of trade, operate and communicate. The extensive restrictions and lockdowns had a severe impact on business. The business was crippled in the past. The longer restrictions on the business activities had declined the revenue. Many businesses have moved to online modes of operation as part of their normal business practice. Businesses continue to indicate that the environment was extremely challenging financially. There was need to think out of square and act aggressively with the change in the business.
The present Director & Secretary - Faiza Waqar restructured the entire business. She realized the importance of employees to run a successful business. Staffing issues was a major concern in business. The business intended to hire new staff with new roles in different areas to enhance marketing skills. So, she put an emphasis to broaden their client base with the need to find more diverse business. Most of the amount have been spent on salaries of employees as compared between two last financial years. The letters issued by business tax agent are attached herewith.
•FINANCIAL YEAR ENDING 30 JUNE 2023
Turnover: $6,85,593.05
Expenditure on wages/salaries: $3,95,680.90
Superannuation: $41,546.49
•FINANCIAL YEAR ENDING 30 JUNE 2022
Turnover: $3,51,500.11
Expenditure on wages/salaries: $103,181.29
Superannuation: $7,332.72
The business has made considerable progress in turnover as compared with the past. It will be more profitable in the coming years and can develop to a highly successful, long term profitable entity. The business will have the financials capacity to provide full time paid employment with annual salary of $58,000.00 plus superannuation to the nominee for period of two years and to comply with its sponsorship undertakings. The employment agreement of business with nominee - Jagdeep Singh is attached herewith.
It is submitted that the decision of the delegate should be reconsidered and set aside in the light of the above facts explained. Thank you.
…
Also provided was a letter from the applicant’s accountant, dated 19 March 2024, in which he indicates that:
…
We have been engaged as the Accountant for Azooba The Food Wonderland Pty Ltd and we hereby confirm that:
• The business had underperformed during the Covid19 lockdowns in Victoria. As the business is operating in hospitality industry they can generate significant profits only with right key staff. The management is also undertaking renovations this year.
• The businesses is experiencing significant revenue and profit growth in the 2023- 2024 financial year and anticipating further growth in the future years.
• The business will continue to earn profit in the succeeding years as there is an expansion to staffing support and existing utilization of premises. This would also allow the company to increase its turnover and profitability.
• The business sales for Financial Year 2024 until 31December2023 is $317,077, this in comparison is much higher than previous years
• The business and the management must retain and maintain experienced core staff (Chefs) for regular operations. This information is true to the best of our knowledge and has been confirmed from independent enquiries with our client and our records.
…

In a separate letter dated 26 March 2024, the accountant stated that:
…
We have been engaged as the accountant for above mentioned entity. Based on the discussion we had with our client, we can confirm the following.
1. The entity is intended to sponsor overseas employees and will have the financials capacity to provide full time paid employment to the nominee for period of 2 years and further.
2. We believe that the entity will be able to comply with the sponsorship undertakings in relation to current business trends.
3. The entity will be profitable in the coming years and can develop in to a highly successful, long term profitable entity.
…
Finally, the applicant provided a copy of a new employment agreement between the applicant and the nominee dated 15 March 2024, indicating that he is employed on a full time basis as a Chef on a salary of $58,000 a year plus superannuation.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is subclass 187, the application must be made before 16 November 2019. This does not apply in the present case, as the subclass identified in the nomination is a subclass 186 visa.
The Tribunal has reviewed the Department file containing the nomination application and is satisfied that it complied with the above requirements.
Accordingly, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
The Tribunal notes that the Department’s file contains a record indicating that in February 2015 and July 2015, the Department received 2 allegations from an unknown source stating that a sponsored subclass 457 visa holder was not working for the business as claimed. There is no record that these dob-ins resulted in the Department undertaking any action against the applicant. If accurate, this would have constituted a breach of the applicant’s sponsorship obligations. However, under these circumstances – where no Department action was taken, scant detail was provided in the allegations, and they were made approximately 9 years ago – the Tribunal considers it reasonable to disregard this information.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is Victoria, the relevant occupation is Chef and the date of application is 6 August 2020.
There is no evidence before the Tribunal to indicate that licensing, registration or membership of a professional body is required to perform the tasks of a Chef in Victoria.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with Commonwealth and Victorian laws relating to workplace relations
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
There is no indication that the applicant owes any debt in relation to s.140ZO of the Act.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The websites of the Australian Securities and Investments Commission (ASIC) and the Australian Business Number (ABN) registry indicate that the applicant is currently registered with both organisations. Its financial statements for 2022/2023 show its turnover was approximately $685,500 in that financial year. The material provided indicates that the applicant trades as Bar B Q Lounge, with 2 sites in Melbourne (Brunswick and Tullamarine), and (according to its website) serves ‘Indian and Pakistani food… Halal BBQ, Grills and Curries.’ Both locations are open 7 days per week, and offer a large dining lounge that can cater for group bookings and functions.
From the above, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
There is no indication that the applicant’s business activities involve labour hire to other, unrelated businesses.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The available information indicates that the applicant’s business operates 2 large Indian/Pakistani restaurants in suburban Melbourne, featuring an ‘all you can eat’ buffet with a range of dishes and an a la carte menu.
The Tribunal has had the benefit of receiving detailed evidence from Ms Waqar and the nominee, Mr Singh, at the hearing, and found them both to be credible witnesses.
At hearing, Ms Waqar explained that since taking over the business, she had expanded the a la carte menu, recruited additional staff and increased the turnover of the business (as evidenced by its most recent financial statements). She confirmed that the nominee had started in the business in the Tullamarine venue as a Cook on a part time basis before she took it over, and had been promoted to the position of Chef on a full time basis due to his skills and experience and the need for several Chefs within the business due to the range of food it offered, its size and the opening hours of the business. She further indicated that the role of the nominee involved the duties of a Chef, not a Cook, as the nominee (and the other Chefs within the business) were responsible for menu planning, food ordering and training and rostering kitchen staff, as well as food preparation and cooking. The nominee Mr Singh gave detailed evidence of his duties as a Chef, without having heard his employer’s evidence, including that he was menu planning, food ordering and training and rostering kitchen staff (including a Cook). The Tribunal accepts their evidence regarding the role.
Given this, the Tribunal is satisfied that the nominated position involves the duties set out in ANZSCO for a Chef, including:
·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 the owner, Ms Waqar, and other staff;
·demonstrating techniques and advising on cooking procedures;
·preparing and cooking food;
·explaining and enforcing hygiene regulations; and
·training staff.
The Tribunal is satisfied that although the nominee also performs tasks carried out by a Cook, he is in fact working as a Chef, and that there is a genuine need for several Chefs within the applicant’s business. The Tribunal is further satisfied that the nominee is employed under the applicant’s direct control.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or 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: reg 1.03.
The most recent employment contract provided to the Tribunal for the nominee is dated 15 March 2024, and indicates that the nominee is employed on a full time basis for 2 years, with an extension available, and is working and will continue to work at the Tullamarine venue. His position is Chef, and his salary is given as $58,000 per year plus superannuation of 11%.
The Tribunal is therefore satisfied that rr.5.19(9)(e) and (f) are met.
In relation to r.5.19(9)(g), based on its analysis in the section below, the Tribunal is satisfied that the annual market salary rate (AMSR) for the nominated occupation of Chef is $56,451.20.
As discussed at hearing, the Tribunal had some concerns about the applicant’s financial capacity to employ the nominee on a full time basis for at least 2 years, given the applicant’s 2022/2023 financial statements indicate its turnover for that financial year was approximately $685,500, but that it made a net loss of approximately $367,000. Included in its expenses for that financial year were approximately $395,700 in salary payments and approximately $41,500 in superannuation expenses.
However, the Tribunal has documentary evidence indicating that the business has been employing the nominee for several years on his former salary of approximately $54,000 per year. It has also given weight to the letters from the applicant’s accountant expressing the professional opinion that the business has the capacity to pay at least the AMSR per year for at least 2 years now that it is expanding after suffering a significant downturn during the COVID19 period. While there is an element of speculation about whether its losses will decrease, the Tribunal gives weight to the fact that its year to date turnover suggests that its overall turnover for 2023/2024 will be higher than its turnover to date, and it further accepts that the business has incurred some losses due to its expansion and renovations. On balance, the Tribunal is satisfied that the applicant has the capacity to employ the nominee for at least 2 years on a full time basis. It finds that r.5.19(9)(g) is met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033 ($250,000 per year). Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 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 LIN 18/033: reg 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: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument LIN 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT ($53,900 for nominations lodged prior to 1 July 2023), and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’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 reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 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: regs 2.72(15)(f) and 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: reg 2.72(15)(g).
As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
The most recent organisational chart indicates that, as noted above, there are 2 other equivalent positions to the nominee’s position within the business – that is, there are 2 other full time Chefs, both of whom are the holders of temporary visas. There is also another part time Chef, although his visa status is not given, and at hearing Ms Waqar indicated this employee had now left the business. In any case, the Tribunal is satisfied that there is no Australian worker performing equivalent work in the applicant’s business. In these circumstances, item 8 of IMMI 18/033 provides the following method to determine the AMSR:
For the purposes of subregulation 2.72(17) of the Regulations, and where section 7 of this instrument does not apply and:
(a) wherethere is a fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation, or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an equivalent Australian worker specified in those instruments.
(b) Where there is no fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information.

The definitions section of IMMI 18/033 provides that ‘relevant information’ may include, but is not limited to:
(a) information published on the Australian Government’s Job Outlook website;
(b) job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position;
(c) written advice from registered employer associations and/or unions;
(d) remuneration surveys generated across the relevant industry by a reputable organisation or body.
The Tribunal is satisfied that, in the case of Chefs, there is a Fair Work instrument governing payrates; namely, the Restaurant Industry Award [MA000119]. A review of the Fair Work Pay Guide (published 3 January 2024) for this instrument indicates that adult full time Cooks (Grade 5) (the classification level for a chef de partie or equivalent who has completed an apprenticeship or passed the appropriate trade test or who has the appropriate level of training in cooking) is $1,085.60 per week (annualising to $56,451.20). The Tribunal is satisfied, using the method set out in IMMI 18/033, that $56,451.20 is the AMSR for the nominated occupation of Chef. Therefore, the requirements of reg 2.72(15)(c) are met.
The Tribunal is satisfied that the AMSR exceeds the TSMIT and for these reasons, finds that the requirements of reg 2.72(15)(d) are met.
As per the employment contract dated 15 March 2024, the nominee’s annual salary is $58,000, more than the AMSR and the TSMIT. For these reasons, the Tribunal finds that the requirements of regs 2.72(15)(e) and (f) are met.
There is no information before the Tribunal that indicates that the AMSR is inconsistent with Australian labour market conditions relevant to the occupation of Chef, and for these reasons, finds that the requirements of reg 2.72(15)(g) are met.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
There is no evidence before the Tribunal to indicate that there is any information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a subclass 186 (Employer Nomination Scheme) visa, and nominations for a subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a subclass 186 visa.
Regulation 5.19(10) requires that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(11) and in force at the time the application is made. In addition, the occupation must apply to the identified person in accordance with the instrument. In this case, the relevant instrument is LIN 19/049.
Further, for nominations made before 12 August 2018, reg 5.19(10)(c) requires that certain specified training requirements are met. In this case, this does not apply as the nomination application was made on 6 August 2020.
The Tribunal has reviewed LIN 19/049 and is satisfied that the occupation of Chef is listed in it, subject to the following exclusionary caveats:
·note 7 – the Chef position is located in a mass factory setting; and
·note 8 – the Chef position is in a limited service restaurant.
The definitions section in LIN 19/049 states that a limited service restaurant includes the following:
(a) a fast food or takeaway food service;
(b) a fast casual restaurant;
(c) a drinking establishment that offers only a limited food service;
(d) a limited service cafe, including a coffee shop or mall cafe;
(e) a limited service pizza restaurant.
For the reasons set out in paragraphs 58 and 59 above, the Tribunal is satisfied that the tasks of the nominated role will continue to be performed in Australia and that they do correspond to the tasks of a Chef as set out in LIN 19/049 and the ANZSCO dictionary.
In relation to the exclusionary caveats set out in notes 7 and 8 of LIN 19/049 for Chefs, the Tribunal is satisfied that note 7 does not apply as the position is not based in a mass production factory setting. The Tribunal has considered whether the applicant’s restaurant could be classified as a limited service restaurant, as per note 8. In addition to the definition in LIN 19/049 above, it has taken into account Departmental policy, as set out in its Procedures Advice Manual (PAM3) (version in force at the time of the nomination application):
…
3.7.1. Definitions
3.7.1.1 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.
3.7.1.2 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.

3.7.1.3 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.

3.7.1.4 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.

3.7.1.5 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.

3.7.1.6 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.

3.7.2. 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.

3.7.2.1. 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.

3.7.2.2. 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.
…

Based on the evidence given by Ms Waqar at hearing, and the documentary evidence provided, the Tribunal is satisfied that the applicant’s restaurant is not a limited service restaurant, given that:
·it is marketed to the public as a dining establishment, although it also provides take away food and catering;
·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 and involving substantial preparation, seasoning and cooking, using a range of equipment and techniques;
·the applicant has a comprehensive menu which incorporates a broader range of ingredients that are delivered fresh to the premises;
·table service is provided to customers dining in;
·customers pay after eating;
·the business holds a liquor licence and has a comprehensive selection of alcoholic beverages;
·the menu caters for special dietary requirements and varies from time to time depending on availability of produce, and seasoning; and
·the business has a full commercial kitchen and food storage facilities for fresh ingredients.
Therefore, the Tribunal finds that the nominated position is not excluded from being approved by note 8 of LIN 19/049.
Given the above findings, the Tribunal is satisfied that reg 5.19(10) is met. Accordingly, reg 5.19(9)(j) is also met.
Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alison Mercer
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)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 identified person 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;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2024] AATA 1064

19 April 2024

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