CHOUKETTE PTY LTD (Migration)

[2021] AATA 4728

CHOUKETTE PTY LTD (Migration) [2021] AATA 4728 (26 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  CHOUKETTE PTY LTD

CASE NUMBER:  1828737

HOME AFFAIRS REFERENCE(S):          BCC2018/2586393

MEMBER:Ian Berry

DATE:26 October 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 26 October 2021 at 3:12pm

CATCHWORDS
MIGRATION – nomination – applicant failed to provide the information within the prescribed period – Café or restaurant manager – intention not to proceed with application – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359, 360, 363
Migration Regulations 1994, rr 2.72, 2.73, 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 September 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 10 July 2018. A nomination of an occupation for a Subclass 482 visa is made under s.140GB of the Act and r.2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s.140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the short-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(8)(b) because the applicant’s nominated position of Café or restaurant manager (ANZSCO 141111) is subject to the cave yet that the position is excluded from a fast Food or takeaway food service business in the 482 program. From the photographs supplied by the applicant, and showed limited room for sit-down patrons, pre-made food and simply prepared meals designed for takeaway meals or the fast Food market.

   Invitation pursuant to s.359(2)

4. On 6 September 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the applicant’s business, its financial position; registrations; taxation information; organisational structure; roles and duties of the nominated occupation and matching with ANZSCO tasks; whether the nominated occupation is subject to an inapplicability condition and wide that condition does not apply; annual market salary rates information and the nominee’s Visa status , in writing. 

5. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 20 September 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. 

6. The applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit it to appear: Hasran v MIAC [2010] FCAFC 40.

7. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

8. The applicant is represented by Mr C Stamopoulos MARN 0318065.

9. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s.140GBA must be met.

    Specified occupation

11. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.

12. The nominated occupation of Café or restaurant manager is the subject of an inapplicability condition in the above legislative instrument. A café or restaurant manager is subject to the inapplicability condition number 8. This inapplicability condition states that the position is in a limited service restaurant. IMMI 18/048 defines limited service restaurant as including a fast Food or takeaway food service; a fast casual restaurant; a drinking establishment that offers only a limited service of food; a limited service Café, including a coffee shop or mall Café and a limited service pizza restaurant.

13. In the applicants nomination application, in response to the question as to whether the cave yet applies to the nominated occupation of Café or restaurant manager in provides the following:

    Choukette is a fine pastry food establishment. It’s food lies between a French restaurant and a French pastry Café. It has been featured in the Age good Food guide and Epicure. Whilst the website depicts a standard menu, the chefs cooks employed at Choukettes make to order in their commercial kitchen.

14. Though the applicant lost the right to a hearing, it did not provide any further information to the Tribunal upon which such information would be considered. However, the applicant’s nominee Mr Gaetan Chapon (the nominee) wrote to the Tribunal on 22 September 2021. His letter stated that he also was riding on behalf of Nans Wojtczak the director of the applicant.

    This letter, while not a submission, indicates the applicant does not intend to proceed to contest the delegate’s decision:

    require winning the appeal to legally remain in Australia. Indeed, I have been in a registered relationship with my partner for two years, and we have two children to support and educate in this country. She is a permanent resident and our children are citizens. She has been asking me to apply for a partnership visa for over a year now.

    I originally wanted to finalize my appeal before applying for the partnership visa, but in the light of the current circumstances and the impossibility of winning the sponsorship, we are planning to apply for it as soon as the sponsorship decision has been made by the AAT.

    Due to my partnership visa application and the possibility of it allowing me to stay with my family in Australia, my employer no longer feels “obligated” to continue with the sponsorship in order to enable my secure residence in the country.

    Again, I wish to apologise in the delay of this response. I am unsure of when your decision will be made, and how you decide to deliver it, but I hope this statement will make it easier for you.

15. The Tribunal acknowledges the applicant’s director and nominee indicating their intention not to proceed with their application. However without a withdrawal, the Tribunal is still under the obligation to ensure that the applicant’s application is decided according to law.

16. The evidence relating to the inapplicability condition 8 is contained entirely upon the departmental file. That evidence consists of:

    ·The applicant’s organisational chart shows the employees to be a pastry chef, chef, Café manager, pastry cook, kitchen and, arresters and part-time waiters. The occupations are more in line with ready to go food than planned menus.

    ·The applicant provides a list of duties which does not align with a café or restaurant manager in that it involves that position in marketing and financial reporting.

    ·The photographs of the internal stores shows a display cabinet well lit in a few locations with small tables and chairs aligning the wall opposite the display cabinets. It appears the display cabinets have a range of pastries and cakes. With customers standing waiting to be served and are the sitdown patrons leaves little room within which weight staff are able to negotiate meals.

    ·At the rear of the Café there appears to be a photograph of a library book exchange as well as tables and chairs most suited for a couple.

    ·A submission is made on behalf of the applicant Dated 3 September 2018 Directed to the Department of Home Affairs. The submission states that to from a small pastry shop and café it is expanded the customer’s demands. The business now prepares meals in addition to coffees, cakes and pastries. It is open seven days a week and employs approximately 16 people of which include five full-time employees.

    ·Though the café has expanded, there is no evidence of a menu to show and illustrate the extended services and meals to patrons.

    ·Photographs of the kitchen show an extensive kitchen area though no evidence of meals being prepared.

    ·A photograph of a chalkboard shows basic meals such as Fennel with fried shall lots at a cost of eight dollars Dish of the Day $10 and another meal.

    ·Facebook photos show generally quick and small meals and pastries.

17. The Tribunal is satisfied that the applicant is conducting a limited service restaurant which involves both fast Food; takeaway food; fast casual restaurant; limited service Café including coffee shop.

18. For these reasons the requirements of r.2.72(8) are not met.

19. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to approve the nomination.

    Ian Berry
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

    (1)This regulation applies in relation to a person who:

    (a)is any of the following:

    (i)       a standard business sponsor;

    (ii)      a person who has applied to be a standard business sponsor;

    (iii)     …

    (iv)    …

    (b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

    (i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

    (ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;

    (iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

    (2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

    Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

    (3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (5)The Minister is satisfied that:

    (a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or

    (b)…

    (5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

    (6)If the nominee holds:

    (a)a Subclass 457 (Temporary Work (Skilled)) visa; or

    (b)a Subclass 482 (Temporary Skill Shortage) visa;

    the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

    (7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (8)The Minister is satisfied that:

    (a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

    (i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or

    (ii)      …; and

    (b)the occupation applies to the nominee in accordance with the instrument or work agreement.

    (9)The Minister may, by legislative instrument, specify occupations and, for each occupation:

    (a)whether the occupation is:

    (i)       a short term skilled occupation; or

    (ii)      a medium and long term strategic skills occupation; and

    (b)either:

    (i)       the 6-digit ANZSCO code for the occupation; or

    (ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and

    (c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and

    (d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

    (i)       the person who nominated the occupation;

    (ii)      the nominee;

    (iii)     the occupation;

    (iv)    the position in which the nominee is to work;

    (v)     the circumstances in which the occupation is undertaken;

    (vi)    the circumstances in which the nominee is to be employed in the position.

    (10)The Minister is satisfied that the position associated with the occupation is:

    (a)genuine; and

    (b)a full-time position.

    (10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (11)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is not an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

    (e)the person will give the Minister a copy of the contract signed by the employer and the nominee.

    (12)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person; and

    (e)the person will give the Minister a copy of the contract signed by the person and the nominee.

    (13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) … ,

    (14)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

    (c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

    the person has provided evidence to the Minister that the nominee satisfies:

    (d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

    (e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

    (15)Subject to subregulation (16), if:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

    the Minister is satisfied that:

    (c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

    (d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

    (e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

    (f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

    (g)either:

    (i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

    (ii)      it is reasonable to disregard any such information.

    (16)However:

    (a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

    (i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

    (ii)      it is reasonable in the circumstances to do so; and

    (aa)the Minister may disregard the criterion in paragraph (15)(e) if:

    (i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

    (ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and

    (b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

    (18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

    (a)either:

    (i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

    (ii)      it is reasonable to disregard any such information; and

    (b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.

    (19)…