Cuppa Haven Pty Ltd (Migration)

Cuppa Haven Pty Ltd (Migration) [2024] AATA 1600 (5 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Cuppa Haven Pty Ltd
CASE NUMBER:  2110700
HOME AFFAIRS REFERENCE(S):         BCC2020/1875423
MEMBER:Alison Mercer
DATE:5 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 5 March 2024 at 10:41am

CATCHWORDS
MIGRATION – nomination – Café or Restaurant Manager – Short-term stream – applicant declined hearing invitation – applicant operated a fast casual restaurant – nominated position is excluded from approval as it falls within the caveat set out in item 8 of LIN 19/048 – business is no longer operating – not satisfied that the position associated with the nominated occupation was genuine and full-time – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359, 360
Migration Regulations 1994, rr 1.13, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 29 July 2021 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, Cuppa Haven Pty Ltd, applied for approval of its nominated position of Café or Restaurant Manager on 9 July 2020. A nomination of an occupation for a subclass 482 visa is 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 delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(8), which required that the nominated occupation was listed in the relevant written instrument, and was not excluded by any occupational caveats in that instrument. The delegate was satisfied that the nominated occupation was listed in the relevant written instrument but noted that the occupation of Café or Restaurant Manager was excluded from approval if (amongst other things) the associated position was based in a ‘limited service restaurant.’ The delegate noted that the applicant traded as the Perk Up Café, a café and burger bar, and concluded that this was a limited service restaurant. The delegate therefore refused to approve the nomination.
The Tribunal received a review application on 17 August 2021. It was lodged on behalf of the applicant by its director, Mr Saravanan Muniandy, and was accompanied by a copy of the delegate’s decision.
On 16 October 2023, the Tribunal wrote to Mr Muniandy to invite him, pursuant to s.359(2), to provide updated and current information demonstrating how the applicant met all of the relevant criteria in r.2.72 (not merely the criterion that the delegate found was not met). The Tribunal requested that this information be provided by 30 October 2023.
On 30 October 2023, the Tribunal received a response from Mr Muniandy consisting of:
·undated letter from Mr Muniandy, in which he states that the applicant closed the Perkup Café business during the pandemic, and that he had been exploring various locations to reopen the business as the situation was now more stable than it had been for 2 years. He noted, however, that business loans and interest had been quite high, which added further headwinds to his intention to reopen the business. Mr Muniandy requested an extension of time until a new location was identified and the business reopened;
·copy of the applicant’s approval as a Standard Business Sponsor (SBS) by the Department, valid from 3 July 2020 to 3 July 2025;
·company tax returns and financial statements for 2020/2021;
·employment contract dated 11 June 2020 between the applicant and the nominee, Ms Chuleepoern Jai-Erb, stated by Mr Muniandy to be subject to review once the business reopened;
·position description for the nominated position;
·approval of previous nomination made by the applicant;
·Australian Securities and Investments Commission (ASIC) and Australian Business Name (ABN) information for the applicant; and
·information about the nominee, including her English proficiency.
On 9 February 2024, the Tribunal wrote to Mr Muniandy to invite him, on behalf of the applicant, to attend a hearing on 8 March 2024, as the Tribunal was unable to make a favourable decision on the material before it. The Tribunal requested him to provide any further material in support of his case by 1 March 2024, and advised that it would assist the Tribunal to have the nominee, Ms Chuleeporn Jai-Erb, attend the hearing to give evidence as a witness.
On 15 February 2024, Mr Muniandy responded by email as follows:
…
First and foremost, thank you for considering my application and appeal and your kind invitation for the hearing. Here’s my response form attached with details for participant that will be attending the hearing.
As director of Cuppa Haven Pty Ltd, unfortunately I will not be able to attend due to my travel commitments, but Ms Chuleeporn Jai-Erb will be attending the hearing.
As it currently stands, I do not have any additional new documents to submit, apart from those submitted on 28 October 2023. I do wish to reiterate to Administrative Appeals Tribunal, that it’s my intention to reopen the business in future. However, I must acknowledge the challenging economic conditions we are currently facing, compounded by the high interest rates imposed by financial institutions. These factors make it exceedingly difficult for business owners like myself to identify viable opportunities for ventures. While I am actively exploring avenues for reopening, I am cautious not to rush into any decisions amidst the prevailing uncertainties.
I deeply appreciate your understanding in this matter and your consideration of Ms. Chuleeporn Jai-Erb's application. Should you require any further information or clarification, please do not hesitate to contact me.
…
Mr Muniandy attached a hearing response with the box for ‘no’ ticked as to whether he wished to attend a hearing on behalf of the applicant.
On 16 February 2024, the Tribunal wrote to Mr Muniandy to advise that the hearing to which he was invited related to the applicant, and that the nominee was not able to attend the hearing on behalf of the applicant, in the absence of an authorised person representing the applicant company. It further noted that if he did not attend the hearing, the Tribunal would proceed to make its decision on the papers without taking any further steps to allow him to appear. The Tribunal requested that Mr Muniandy confirm in writing whether he consented to the Tribunal making a decision on the papers or whether he would attend the hearing.
On 26 February 2024, Mr Muniandy emailed the Tribunal to apologise for a late response, explaining that he had been travelling with intermittent internet access. He said that he would appreciate it if the Tribunal would make its decision on the papers already submitted, and based on the explanation in his previous emails.
Accordingly, the Tribunal has proceeded to make its decision without scheduling another hearing, as it is entitled to pursuant to s.360(2)(b) of the Act.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF LAW, 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.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal is satisfied that the nominated occupation of Café or Restaurant Manager (ANZSCO code 141111) is listed in LIN 19/048 and is subject to the following occupational caveats:
·Note 8 – position cannot be approved if located in a limited service restaurant
The definitions section in LIN 19/048 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.
The material provided by Mr Muniandy indicates that the applicant company previously traded as the Perk Up Café, in Melbourne’s central district, and had an outdoor dining permit. The sample menu provided to the Department indicates that it served breakfast (including various toasts and cooked egg meals), burgers (14 varieties, plus a few other meat and seafood dishes and salads) and non-alcoholic drinks. A floor plan provided shows seating for approximately 40 patrons indoors and outdoors. The organisational chart shows 2 other chefs besides Mr Muniandy (listed as owner/chef), and also a Restaurant Manager (stated to be the nominated position currently filled by a person who wished to step down in favour of the nominee, due to health reasons), an Assistant Manager (position at that time occupied by the nominee), 2 wait staff and a barista. A letter dated 9 July 2020 from the applicant’s then agent indicated that the business usually traded from 5.30am to 8.30pm but was subject to COVID19-related trading restrictions, and was now open between 7am and 2pm. The agent also stated that ‘
Due to COVID-19 restrictions, the business offers takeaway services through Deliveroo and Menulog. Screenshots of ordering through these companies have been included as evidence of this. Normal operations included table service, where wait staff take orders at the table, present the food, beverages, wine, etc. In addition, payment was upon conclusion of the meal, with the bill delivered to the table.
The Tribunal notes the agent’s reference to the service of wine, but was unable to find any evidence that the applicant held a liquor licence, and its drinks menu does not feature any alcoholic drinks.
The Tribunal has also had regard to the Department’s Procedures Advice Manual (PAM3, as at 1 March 2024) which provides the following guidance on assessing restaurants and cafes:
…
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.
…
3.7.1.4 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.
…
3.7.2. 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.
…

While Departmental policy is not binding on the Tribunal, the Tribunal considers it appropriate to have regard to it (provided that it does not impermissibly restrict the underlying legislation it purports to explain), for consistency of decision-making.
Information about several of the factors discussed in the PAM3 extracts above was not provided by the applicant (for instance, whether reservations were possible, the size and nature of the kitchen and so on). The Tribunal acknowledges that some factors point to the applicant not operating a ‘fast casual restaurant’; such as the fact that it is stated that orders are taken, and bills delivered, to diners at their tables (not at the counter) and that the applicant’s menu contains a wide range of different gourmet burgers, the contents of which can be customised to some extent by patrons. However, other factors indicate that it may be a fast casual restaurant, such as the limited variety of dishes available (breakfast, burgers, a couple of other meat dishes and salads), its relatively limited seating capacity and the fact that it is not licensed.
Having weighed up the available evidence, the Tribunal considers that the greater weight of evidence indicates that, when operational, the applicant operated a fast casual restaurant. This is because the available evidence indicates that it catered primarily to workers in Melbourne’s CBD primarily for coffee, breakfast and lunch with a relatively limited a la carte menu, and was not licensed. In the Tribunal’s view, this puts it into the fast casual restaurant category and thus the Tribunal finds that the nominated position is excluded from approval as it falls within the caveat set out in item 8 of LIN 19/048.
For these reasons, the Tribunal finds that the requirements of reg 2.72(8) are not met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
At the time of the nomination application in July 2020, it is not disputed that the applicant was operating the Perk Up Café, albeit with restricted trading hours arising from the imposition of the Melbourne periods of lockdown during the COVID19 pandemic. However, the most recent evidence from Mr Muniandy is that the applicant has closed the Perk Up Café business and that it is no longer operating. The Tribunal notes that Mr Muniandy advised in October 2023 and again in February 2024 that he hoped at some stage to reopen the business in a new location. However, he did not provide a time frame or any concrete plans in relation to this aim. Moreover, he referred to the fact that it was still economically a difficult situation in which to (re)open the business. The Tribunal acknowledges that he in effect asked the Tribunal to consider the case favourably, given his intention to re-establish the business at some point. The Tribunal has some sympathy for business owners affected by the ongoing COVID19-related trading restrictions in Melbourne between 2020 and 2022, which had a significant effect on many businesses, including those in the hospitality industry. However, it has also taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes in order to enable an applicant to meet the relevant legislative requirements.
In this case, the evidence of the owner of the business is that it is no longer operating and there is no clear or imminent date on which it might reopen (if indeed it does at all). Where there is no imminent prospect of the applicant providing favourable information which might affect the outcome of the Tribunal’s review, the Tribunal does not consider it unreasonable to proceed to a decision without deferring the decision for a further period: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Given the above findings, the Tribunal cannot find that the applicant has a genuine need for the nominated position as its business is no longer operating, and there is no evidence that the nominee is working in the nominated position in any capacity, let alone a full time basis. While, as noted above, the Tribunal has some sympathy for Mr Muniandy and the nominee, given the circumstances in which the café shut were largely outside their control, it is unable to be satisfied that the nominated position is genuine in 2024, nor that it is a full time position. Nor does it consider it reasonable to disregard the latter requirement, in view of its finding that the business is not operating at all.
For these reasons, the Tribunal finds that the requirements of reg 2.72(10) are not met.
As the Tribunal has found that 2 of the required criteria in r.2.72 are not met (being subparagraphs (8) and (10)(a)), it is unnecessary for the Tribunal to assess the remaining criteria in r.2.72 and s.140GB.
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
The Tribunal affirms the decision not to approve the nomination.
Alison Mercer
Member

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)…

[2024] AATA 1600

5 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Natural Justice