C&G FAMILY PTY LTD (Migration)

C&G FAMILY PTY LTD (Migration) [2022] AATA 3885 (17 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  C&G FAMILY PTY LTD
REPRESENTATIVE:  Ms Hannah He Chen (MARN: 0429389)
CASE NUMBER:  1835542
HOME AFFAIRS REFERENCE(S):          BCC2018/3023161
MEMBER:Deputy President J.L Redfern PSM
DATE:17 November 2022
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 17 November 2022 at 2:51pm
CATCHWORDS
MIGRATION – Temporary Skill Shortage visa (Subclass 482) nomination – approval for nominated position of Restaurant Manager (ANZSCO 141111) – short-term stream – whether nominated position is a ‘genuine position’ – adverse information – reasonable to disregard any adverse information known to Immigration – decision under review set aside
legislation
Migration Act 1958 (Cth), ss 140GB, 140GB(2), 140GBA
Migration Regulations 1994 (Cth), regs 2.57A, 2.72, 2.72(4) 2.72(10)(a), 2.73, 2.73(1) – (14), 2.79, 2.90 Schedule 2
Cases
Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30
SECONDARY MATERIALS
Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018
Migration (IMMI 18/048: Specification of Occupations – Subclass 482 Visa) Instrument 2018
Migration (IMMI 18/059: Period within which labour market testing is required to be undertaken) Instrument 2018
Procedural Instruction – Migration Regulations – Divisions – Adverse information and skilled visas (reissued 11 December 2021)
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 November 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).
The applicant, C&G Family Pty Ltd (C&G), operates a restaurant known as ‘Chulho Authentic Nepalese and Indian Cuisine’ which is located in Harris Park.
The applicant applied for approval on 11 August 2018. A nomination of an occupation for a Subclass 482 visa was made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the: Short-term stream. The occupation nominated is Restaurant Manager (ANZSCO 141111).
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the requirement in reg 2.72(10)(a) of the Regulations. The delegate was not satisfied the position associated with the nominated occupation was genuine. The delegate was also concerned about the financial capacity of the applicant to meet the financial commitments of supporting the visa holder. The delegate did not make an assessment or findings in relation to the balance of the requirements for approval of the nomination.
Ms Asmita Shahi was nominated for the role of Restaurant Manager. She made an application for the related subclass 482 visa. Because her application was dependent upon the nomination being approved, her application for the related visa was also refused.
The nomination and related visa applications were listed for hearing concurrently on the same day. The outcome of the proceedings in relation to the applicant’s nomination is critical to the potential outcome in the related visa application of Ms Shahi.
After the nomination application was refused, the Australian Border Force (ABF) commenced a review of the operations of the applicant in March 2020 to assess whether it had complied with its sponsorship obligations. As a result of this review the ABF, found that the applicant had failed to satisfy its sponsorship obligations in that it had breached regulation 2.79, being the obligation to ensure equivalent terms and conditions of employment for sponsored employees. In summary, the ABF found that the applicant had underpaid two of its sponsored employees, including Ms Shahi, but noted that the breach had been rectified. The ABF noted a further breach and barred the applicant from sponsoring more people under the terms of its approved standard business sponsorship for one year. This bar took effect from 4 December 2020 and expired on 4 December 2021. Issues in relation to this bar were relevant to the proceedings and, as such, various documents were released to the applicant for response and comment. Those matters are considered in detail in this decision.
The applicant appeared before the Tribunal on 27 April 2022 through its director, Mrs Mina Kumarsi Shrestha, and its general manager, Mr Chij Kumar Shrestha, to give evidence and present arguments. Mr and Mrs Shrestha are married and while Mrs Shrestha is both director and company secretary of the company, it is clear that Mr Shrestha runs the day-to-day operations of the company, and that Mrs Shrestha has a limited role. Mr Shrestha therefore gave evidence about the operations of the applicant, and I was satisfied he was authorised to act on its behalf. Ms Asmita Shahi and Mr Rajan Shahi, the secondary applicant of Ms Shahi’s application was also present at the hearing. Ms Asmita Shahi gave oral evidence. The hearing was adjourned to give the applicant the opportunity to present further evidence and to obtain legal representation. A further hearing proceeded on 22 July 2022 and the Tribunal received oral evidence from Mr Chij Kumar Shrestha and Ms Asmita Shahi. Mr Rajan Shahi was also present at the hearing. C&G Family Pty Ltd, Ms Asmita Shahi and Mr Rajan Shahi were represented by migration agent, Ms Hannah He Chen. The Tribunal hearings were in person and conducted with the assistance of an interpreter in the Nepali and English languages.
For the following reasons, I have decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant must have made the nomination in accordance with the process set out in reg 2.73.
I have reviewed the nomination application dated 11 August 2018 and I am satisfied that the nomination has been made in accordance with the process set out in reg 2.73.
The applicant is nominating a proposed occupation under s 140GB(1)(b) of the Act in relation to an applicant for a subclass 482 visa (reg 2.73(1)). The nomination was made using the approved form and fee and was accompanied by the nomination training contribution charge (regs 2.73 (3), (4), (5) and (5A)). The occupation nominated is one of the short-term skilled occupations specified in the relevant instrument made under reg 2.72(9) of the Regulations, namely the Migration (IMM 18/048: Specification of Occupations – Subclass 482 Visa) Instrument 2018 (reg 2.73(6)(a)).[1]
[1] Refer s 5 at Item 40 being Café and Restaurant Manager ANZSCO code 141111.
The applicant identified Ms Asmita Shahi as the nominee (reg 2.73(8)) and the nomination includes the name of the occupation (Café or Restaurant Manager), the corresponding 6-digit code (ANZSCO141111), the location at which the occupation will be carried out (Harris Park, post code 2150), the proposed period of stay (up to two years) and the annual turnover for the nomination (AUD 801,138) (reg 2.73(9).[2] The nomination application includes written certifications about s 245AR(1) of the Act (reg 2.73(12)). It also includes written certifications that the employment contract with Ms Shahi complies or will comply with Commonwealth, State or Territory employment laws (reg 2.73(13)), that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO code 141111, and that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO code 141111 (reg 2.73(14)).[3]
[2] Refer pp 2-5 Application for Nomination for a Temporary Skill Shortage Visa dated 11 August 2018.
[3] Ibid p 12.
For these reasons, I am satisfied that the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. The reference to ‘Immigration’ should now be taken to refer to the Department of Home Affairs, which includes the Immigration portfolio.
In this case, there was a decision made by a delegate of the Minister to bar the applicant from 4 December 2020 until 4 December 2021 from sponsoring more people under the terms of the approved standard business sponsorship. This bar was made pursuant to subsection 140M(1) of the Act. The action taken arose out of an audit undertaken by the ABF which found that the applicant had underpaid two workers, including Ms Shahi. The delegate accepted that the underpayment was unintentional and that the applicant had paid all amounts alleged to been underpaid to both Ms Shahi and another employee. This was confirmed by Ms Shahi during the hearing.
It was also noted in the decision recording the bar that the applicant had provided false or misleading information to the ABF on 19 May 2020 in the form of PAYG summaries and Notices of Assessment for two employees and that these documents were misleading because they gave the impression that tax had been paid for both sponsored employees. It was further noted that the ABF had sought information from the Australian Taxation Office (ATO) to verify whether the tax had been paid by the sponsor for the employees for the financial year ending 30 June 2019. The ATO advised that ‘no records existed’ for 2019 in relation to the sponsored employees in question. The concern raised in the decision record was that the documents provided were false. Because this matter was of concern, information was sought from the Department in relation to the alleged false or misleading information.
The Department provided further information on 11 October 2022 relating to question on how the officers formed the view that the PAYG summaries and Notice of Assessments provided by the applicant in relation to the sponsored employees were false or misleading. The Department provided copies of documents provided by the applicant’s former representatives on 21 March 2020. One of the documents was a draft PAYG summary setting out the salary paid for one of the employees in question. The document is clearly a draft and it is not entirely clear how the document included information about tax withheld; although I accept that the ABF officer considered this was a representation that the PAYG form had been submitted and that the tax had been paid.
In relation to Ms Shahi, the applicant provided a Notice of Assessment for the year ending 30 June 2019, which was issued in January 2020. The officers did not seek to verify with the ATO regarding the authenticity of the document but did request information from the ATO and received a response indicating that they had ‘no records’ for Ms Shahi in relation to the 2019 financial year. It was on this basis that the ABF officer concluded that the assessment provided by the applicant for Ms Shahi was false or misleading. However, the Notice of Assessment for the year ending 30 June 2019 appears to be genuine and on the face of it looks like a document issued by the ATO. The response to the ATO may be in error and it is relevant to note that there is no suggestion that the ATO was asked to, or in fact, made an assessment on the authenticity of the 2019 Notice of Assessment for Ms Shahi and found it to be fraudulent.
On balance, I find that the draft PAYG summary submitted for one of the employees may have been misleading, or at least confusing, but I am not satisfied based on the information available that the applicant provided a false Notice of Assessment in relation to Ms Shahi. Mr Shrestha gave evidence that there was unpaid tax which appears to relate to the second employee, and not to Ms Shahi. As such, while I accept the finding that one of the documents provided was misleading, I am not satisfied that the Notice of Assessment provided in respect Ms Shahi was false or misleading and this somewhat ameliorates the impact of the finding by the ABF officer about the breach of reg 2.90. This is a matter to take into account in deciding whether it is reasonable to disregard the adverse information of the subject of the sponsorship bar.
The submission made about reg 2.72 (4) is that while it is conceded that there is adverse information known to Immigration, being the negative finding made in relation to the sponsorship bar, it is reasonable to disregard this adverse information. It is submitted that the following factors should be taken into account and should be afforded significant consideration:
·the nature of the adverse information;
·whether the adverse information arose recently or a long time ago;
·the conduct or circumstance of concern is likely to re-occur (including whether there is taken to guard against this);
·how relevant the adverse information is to the suitability as an approved sponsor or nominator; and
·whether there are any compelling circumstances affecting the interests of Australia.[4]
[4] Procedural Instruction – Migration Regulations – Divisions – Adverse information and skilled visas (reissued 11 December 2021).
It is submitted that the breaches identified in respect of regulation 2.79 were unintentional and have been rectified. It is also submitted that the applicant has been involved in significant disputes between shareholders during the period of 2018 and 2020, and that the failure to lodge tax returns related to this internal dispute which has now been resolved. The applicant took action to rectify the breaches, including paying all monies to the underpaid employees and paying tax. There is evidence to support this contention. It is further submitted that the applicant has taken steps to ensure that these instances of non-compliance do not reoccur, and the applicant sought advice from a migration agent, an accountant and the Fair Work Commission. It is submitted that it would be reasonable for the Tribunal to disregard the adverse information because the issues relating to the adverse information arose over two years ago, the breaches have been rectified and the terms of the bar have now expired. It is submitted compelling circumstances exist because the restaurant has been in the community since 2015, it is said to be the first Nepalese restaurant to introduce live bands and the location is a popular destination for many locals.
I accept this submission, noting that the applicant is no longer barred, there is evidence that the applicant has rectified the breaches, and there is no evidence before me to suggest there are continuing concerns in relation to the applicant in this regard.
As such, while I note that there is evidence of adverse information, I find that it is reasonable to disregard this information for the purposes of the requirements of reg 2.72(4). I therefore find that the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. The applicant was approved as a standard business sponsor from 8 May 2018 until 8 May 2023. As such, I am satisfied that the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. There is no evidence that the applicant has any outstanding debt under s 140ZO of Act. I am therefore satisfied that the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and a 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMM 18/048.[5] The occupation must also apply to the nominee in accordance with the instrument. In this case, the occupation nominated is Café and Restaurant Manager, and the ANZSCO code is 141111. This corresponds to the occupation and 6-digit code specified in the relevant instrument. There is a caveat or condition recorded to the effect that the position is in a limited-service restaurant (item 8, section 8: IMM 18/048).[6] It is submitted, and I accept, for the reasons set out in more detail below, that the role nominated is not a role in a limited-service restaurant. I am therefore satisfied that the requirements of reg 2.72(8) are met.
[5] Migration (IMM 18/048: Specification of Occupations – Subclass 482 Visa) Instrument 2018
[6] Ibid.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The delegate found that this requirement was not established for several reasons. First, the delegate noted that one of the directors of the restaurant (Mrs Shrestha) was being paid an annual salary of $14,203 while the other director (at that stage Mr Shrestha) was being paid $60,736. The delegate found that the fact that the two temporary visa holders working in the restaurant, including Ms Shahi, were paid nearly $54,000 and there was a ‘disparity’ between the directors’ low income and the visa holders’ income, suggested that the business was only paying the temporary visa holders above $53,900 to meet the minimum salary requirement for the Temporary Skilled visa. Secondly, the delegate was not satisfied about the financial capacity of the business to meet the obligations to pay the visa holders, or that it was justified in the circumstances. The delegate noted that total sales, which were in the vicinity of $209,000 per quarter, was inconsistent with the salary paid. It was further noted that the sales for the quarter ending 30 June 2017 were just over $209,000 yet the salary payments were just under $17,000, whereas between October and December 2017 total sales dropped by about $20,000 yet the salaries increased more than threefold.

It was not accepted by the delegate that Ms Shahi was undertaking the tasks referred to in the job description, which included planning menus, organising in-house training sessions for cooks and waiters and providing quotations for the type and number of food items. The delegate was concerned that the low level of wages paid to the waitresses and kitchen hands indicated that the business operated on a small scale. In summary, the delegate found that the small scale of the operation suggested that there was not an overwhelming need to recruit more workers and that the disparities in the payments between the visa holders and the non-visa holding employees suggested a motive for the current job nomination.
The applicant provided further documents to the Tribunal in support of the nomination and Mr and Mrs Shrestha and Ms Shahi gave evidence about the operations of the restaurant.
The applicant has been operating since 2015. It is open seven days a week and provides in-house dining and a takeaway service, with indoor seating capacity of about 50 patrons and an outdoor seating capacity for about 80 patrons. It is clear from Mrs Shrestha‘s evidence that she had a limited role in the running of the restaurant and in working at the restaurant, which perhaps explains the low wages earned by her in the 2017 financial year referred to by the delegate in the decision. Mr Shrestha’s evidence was that he was primarily responsible for the running of the business and that he relied heavily on Ms Shahi to act as a restaurant manager. He said that the business had operated under difficult circumstances during 2020 and 2021 because of the impact of COVID-19. He had found it particularly difficult to find and retain skilled workers in 2021 and the business had to resort to using subcontractors and increasing wages to continue its operations. Even though the restaurant had made a loss in 2020 and 2021, they continued to support the operation of the business because cooking was his particular skill set and this was the only way that he could see that he and his wife would be able to make a living. They were relying on the business improving.
He said that the company had financed the losses through friends and family overseas who had provided funds to assist in continuing their operations. He also said that he and his wife had sold properties to continue to finance the business. Mr Shrestha said that there are currently nine employees in the business including him, two chefs, one part-time and one full-time, a part-time cook, two part-time waitresses and a part-time kitchen hand. Ms Shahi was the restaurant manager and she worked full-time. Mrs Shrestha worked on the front desk and occasionally in the kitchen and helped Ms Shahi from time to time. Mr Shrestha helped with the cooking and organised the takeaway. Mr Shrestha said once he realised that two of the employees, including Ms Shahi, had been underpaid after the ABF audit, the applicant paid them the correct back pay immediately and he had since ensured that the applicant had received proper advice about complying with the award and the provisions of Ms Shahi’s contract. He has retained an accountant to assist.
According to Mr Shrestha, when he first was advertising for the role of restaurant manager, he found it difficult to obtain a suitable employee who spoke Nepalese and understood the Nepalese culture. He advertised in Gumtree and 10 or 12 people applied but only two had the appropriate Nepalese background. Unfortunately, those applicants were not experienced and did not have sufficient experience to manage a restaurant. Mr Shrestha said that Ms Shahi was the most suitable applicant for the job and that she had been continuously employed since this time. She has completed a Diploma of Leadership and Management and has extensive work experience in managerial roles for the past 15 years. According to Mr Shrestha, Ms Shahi was invaluable to the business and her knowledge of the Nepalese culture and ability to deal effectively with customers was an asset to the business.
Mr Shrestha denies that he provided misleading information to the ABF officers. He says that when the company started in 2015, he and his wife were in partnership with a friend. When the friend moved to Melbourne, the friend involved another friend, and a new accountant was retained to look after the financial affairs of the company. Mr Shrestha subsequently found that the partner was improperly taking money from the business and that tax had not been paid. This is why the ABF requested further information from the ATO. Mr Shrestha contends, and I accept based on the evidence before me, that this was subsequently rectified. I also accept Mr Shrestha’s evidence that they took legal action to remove the other director, to rectify the accounts and to pay the appropriate taxation liabilities. This evidence is corroborated by the financial statements, which record legal expenses incurred of nearly $11,000 and additional tax liabilities of over $24,000.
Ms Shahi gave evidence. She said that she commenced employment with the restaurant in June 2016 on a subclass 457 visa and then applied for the current subclass 482 visa. Ms Shahi said since she had worked with the restaurant since that time up to January 2020 as the restaurant manager. She did not work for a period of six months as the restaurant was shut down due to COVID-19. Ms Shahi returned to work from June 2020 and has worked continuously in the role of restaurant manager since this time. She did not realise that she was being underpaid until Mr Shrestha told her that they had made an error. She was paid back pay, including additional separation superannuation in the gross amount of $3,197.50 on 23 October 2020. Ms Shahi explained her tasks, which were consistent with the role of a restaurant manager. She has been continuously employed in the role, with the exception of the six months absence. She works on Monday Thursday, Friday, Saturday and Sunday.
According to the financial statements for the applicant for the year ended 30 June 2021, the business had a turnover of over $1 million but made an operating loss of $173,321 as a result of increased expenses, including contractors, wages and expenses. The financial statements for the previous financial year ended 30 June 2020, reveal turnover of $789,288. The business also sustained an operating loss during this year of over $84,000. This is not surprising given the impact of COVID-19. The financial statements for the year ended 30 June 2022 were not available at the time of decision but the applicant provided updated financial information, being a business activity statement for the period 1 January 2022 to 31 March 2022. This statement records total sales in the vicinity of $200,000 for this quarter. I am therefore satisfied that the applicant has continued to trade, based on the first quarter of this year, its total annual turnover is likely to be in the vicinity of $800,000 to $1 million. Whether the applicant is trading profitably is not the key issue for determination. The question is whether I am satisfied that Ms Shahi’s role is full-time, genuine and continuing. Based on the evidence before me and the fact that Ms Shahi has been employed since 2016 in the role of Restaurant Manager, I am satisfied that this will continue to be her position.
I accept the evidence of the witnesses and found them to be witnesses of truth, with much of their evidence corroborated by documentary evidence. The applicant has been in business for seven years and while there have been difficulties with its profitability during COVID-19, it has continued to operate and employ staff. I am satisfied that the restaurant is sufficiently large to warrant the employment of a restaurant manager, and I find that this is the role Ms Shahi has been performing since she commenced employment in 2016. There is evidence that her remuneration is paid consistently with the award and, unlike the delegate, I am not concerned about the fact that the directors’ wages are low in comparison. It is not uncommon in a business that is struggling for directors to pay themselves lower wages until the business is able to operate more viably. In this case, the owners of the company have made a conscious decision to support the business and continue its operations, notwithstanding the difficulties of COVID-19. This does not compel a conclusion that Ms Shahi is being paid a salary which is artificial and motivated or designed to comply with the regulatory requirements for nomination. There is evidence that Ms Shahi has been paid this salary since her commencement, with the exception of the underpayment identified by the ABF for which she has been compensated, and in the absence of evidence to establish a plausible motive for the artifice, I am not persuaded that such an inference can be made.
In summary, I am satisfied that Ms Shahi has worked in the business in the role of Restaurant Manager since 2016 on a full-time basis, the task undertaken are consistent with this role and there is evidence that her role is ongoing. I am therefore satisfied that the nominated position is genuine and that the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that C&G will give a copy of the contract, signed by the employer and the nominee, to the Minister, unless the nominated occupation is specified in the relevant instrument.
In this case, the applicant is not an overseas business sponsor and so reg 2.72(11) applies. I must be satisfied that Ms Shahi will be employed by the applicant and must be provided with a copy of the written contract signed by Ms Shahi and the applicant (reg 2.72(11)). The applicant has provided a copy of a written employment agreement between it and Ms Shahi dated 13 October 2020. It is signed by Ms Shahi and by the applicant. The contract provides that Ms Shahi is to be paid an annual remuneration of $59,579, including any allowances and loadings, for a 38-hour week. Based on the current information provided by the applicant, this remuneration has increased to $61,354.[7]
[7] Letter IEN Globe Australia, dated 7 October 2022.
Accordingly, the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the relevant instrument.
The relevant instrument, made by the Minister pursuant to reg 2.72(17), is Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018 (IMMI 18/033). The amount specified in IMMI 18/033 for the purposes of reg 2.72(15)(b) is AUD 250,000. As Ms Shahi’s annual earnings are less than AUD 250,000 the provisions in reg 2.72(15) apply.
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 nominee by reference to relevant instrument (reg 2.72(15)(c));
·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 (TSMIT) (reg 2.72(15)(d));
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion (reg 2.72(15)(e));
·the nominee’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 (reg 2.72(15)(f)); 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).
IMMI 18/033 also sets out the method for determining the ‘annual market rate’ salary for the nominated occupation. Section 7 specifies the method for determining the salary where an Australian worker is performing equivalent work in the workplace. In this case, I am satisfied that there is no such worker performing equivalent work at the same workplace as Ms Shahi. As such, s 8 of IMMI 18/033 is the relevant provision. Section 8 provides that, where s 7 of the instrument does not apply, and there is a Fair Work instrument, State industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for the nominated occupation will be determined by reference to that instrument. In this case there is a Fair Work instrument, being the Restaurant Industry Award 2020.
As such, I am satisfied that under the Restaurant Industry Award 2020 the ‘annual market salary rate’ for this occupation would be at least $53,900, being $51,994 (based on a weekly rate of $999.90 calculated by reference to the minimum base salary) with an additional hourly rate payable because Ms Shahi works over the weekend and late into the evening that would be in the vicinity of $2,000 per annum. Accordingly, I am satisfied that the requirements of reg 2.72(15)(c) are met because the annual market salary rate for the nominated occupation has been determined by the nominee by reference to relevant instrument, being the Restaurant Industry Award 2020.
The TSMIT specified in the instrument IMMI18/033 is $53,900. Given the annual market salary for the nominated occupation of Restaurant Manager exceeds this amount, I am satisfied that the requirements of reg 2.72(15)(d) are met.
I am also satisfied that Ms Shahi’s annual earnings, which are $61,354, excluding any non-monetary benefits, will not be less than the TSMIT and, as such, I am satisfied that the requirements of reg 2.72(15)(f) are met.
There is no information before me that indicates the annual market salary rate being paid, and to be paid, to Ms Shahi is inconsistent with Australian labour market conditions relevant to the nominated occupation of Restaurant Manager. Relevantly, the evidence provided indicates Ms Shahi will be paid at least equivalent to or in excess of current market conditions. The applicant provided evidence that the remuneration for Ms Shahi is comparable to the salary for the occupation of a Restaurant Manager based on data provided on an Australian job website Seek, and Pay-scale research, which recorded the average annual salary for the position of Restaurant Manager as approximately $50,000 to $65,000 (Seek) and $61,000 (Pay-scale). I accept this evidence. For these reasons, I am satisfied the requirements of reg 2.72(15)(g) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
I have reviewed the employment contract for Ms Shahi. I have also reviewed the available Department file and records. There is no information before me that indicates Ms Shahi’s employment conditions (other than earnings) will be less favourable than those for an Australian equivalent worker. Accordingly, I am satisfied that the requirements of reg 2.72(18)(a) are met.
Regulation 2.72(18)(b) provides that if the applicant is lawfully operating a business in Australia, it must not have engaged in discriminatory recruitment practices. I am satisfied that the applicant is lawfully operating a business in Australia and there is no evidence before me to indicate that the applicant has engaged in any discriminatory recruitment practices.
I am therefore satisfied that the requirements of reg 2.72(18)(b) are met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument Migration (IMMI 10/059: Period within which labour market testing is required to be undertaken) Instrument 2018 (IMMI 18/059). Relevantly:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.
In this case, I am satisfied that the labour market condition applies to the applicant because there is no evidence this would be inconsistent with international trade obligations or the nomination is subject to a major disaster exemption or a relevant skill and occupational exemption (refer to sections 140GBA(1)(c), 140GBB and 140GBC of the Act).
The applicant undertook market testing in the six months before the nomination and the nomination was accompanied by evidence of this testing, which included attempts by the applicant to recruit for the role and advertisements placed with JobActive, Seek and Gumtree. This was corroborated by the fees paid for the advertisements together with the submission as to why a suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was not really available to fill the position.
Based on this evidence, I am satisfied that the labour market testing requirements in s 140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. This application was lodged on 11 August 2018. As such, there is no liability to pay the charge.

For these reasons the requirements of s 140GB(2)(aa) are not applicable.
Conclusion
For the reasons given above, I find that the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
J.L Redfern PSM
Deputy President

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

[2022] AATA 3885

17 November 2022

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