Curium Pty Limited (Migration)

Curium Pty Limited (Migration) [2023] AATA 2873 (30 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Curium Pty Limited
REPRESENTATIVE:  Mr Mark Anthony Bridge (MARN: 1382065)
CASE NUMBER:  1936473
HOME AFFAIRS REFERENCE(S):          BCC2019/5710013
MEMBER:Amanda Mendes Da Costa
DATE:30 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 30 August 2023 at 10.06am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – cook – genuine need for position – documentary and oral evidence and certification from regional certifying body – attempts to recruit locally – skills shortage and competition from other businesses – tasks of position – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

CASE
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 15 December 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 12 November 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(d) of the Regulations because it had not identified a genuine need to employ a paid employee to work in the nominated position under the nominator’s direct control.
Via an internet-enabled audio-visual platform, Mr Graham Kenyon (a director of the applicant company) appeared before the Tribunal on 29 August 2023 to give evidence and present arguments.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not be conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both of the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
The applicant was represented in relation to the review, with the representative also participating in the hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Documents provided to the Tribunal
The documentation provided to the Tribunal for the purpose of the review includes the following:
·ASIC company statement of Graham Kenyon.
·ASIC current and historical extract, ABN historical details and Business Name records.
·Company taxation returns for the financial years 2021 and 2022.
·Business activity statements (BAS) for the period July 2021 to May 2023.
·Financial statements for the 2021 and 2022 financial years.
·Organisation chart.
·Nominee’s flight details.
·Nominee’s initial payslip.
·Job description dated 28 June 2023.
·Work samples.
·Employment contracts dated 31 October 2019 and 25 June 2023.
·Restaurant Industry Award 2020.
·Job Outlook Salary Survey.
·Bundle of payslips for the period 8 December 2019 to June 2023.
·Australian salary Market rate Research from SEEK.com.
·PAYG Payment Summaries for the financial years 2020, 2021 and 2022.
·Newspaper articles: Coast Roast Café.
·Lease agreement for the period September 2019 to 2021.
·Rent payment statement for the period March 2022 to 2033.
·Quotation and invoice for café fit-out.
·Subclass 457 vis grant notice for the nominee, dated 3 December 2015.
·Café menus.
·Business gas bill for the period November to December 2022.
·Business telephone bill for February 2023.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
Having regard to the application form and the information provided to the Department, the Tribunal is satisfied that the above requirements for nomination have been met. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (reg 5.1992) and reg 5.37(4) of the Regulations). Based on the Departmental records and the oral evidence of Mr Kenyon, the Tribunal is satisfied that the required nomination training contribution charge has been paid by the applicant.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
There is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with it.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is Queensland, the relevant occupation is Cook ANZSCO 351411 and the date of application is 12 November 2019.
The Tribunal is not aware of any mandatory licensing, registration, or professional membership required for persons to work as Cooks in Queensland.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth and Queensland (where the applicant operates its business), relating to employment.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
As set out above, the Tribunal is satisfied that the applicant paid the required training contribution charge at the time the application was made. Therefore, no training contribution debts have accrued.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The Tribunal has been provided with the applicant’s current ASIC records, ABN details, recent business activity statements (BAS), company taxation returns and financial statements and other information relating to its business operations. Based on the documentation before it, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
The Tribunal has considered the employment contract between the applicant and the nominee dated 25 June 2023. It notes that these contracts set out the nominee’s place of work as Shop 1, Cairns Central Shopping Centre, 21 Spence Street, Cairns City, Queensland 4870. The Tribunal notes that this is the address of the applicant’s restaurant business in Queensland. Based on the evidence available at review, the Tribunal is satisfied that the nominated position of Cook is a permanent, full-time position within the applicant’s business and does not involve any on-hiring to any unrelated businesses.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
It is unclear whether the requirement of reg 5.19(9)(c) is directed just as a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, a decision-maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(9)(c) is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(9)(c) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(9)(c) and reg 5.19(9)(d) which requires that there be a genuine need for the nominee to be employed in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(9)(e), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(9)(c), and the requirement in relation to this application to satisfy the following requirement under reg 5.19(9)(d), the Tribunal considers that this issue is more appropriately considered under reg 5.19(9)(d).
[1] Dictionary.com.
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Bharaj) (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e., ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(9)(c) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identifying the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
The Tribunal considers that reg 5.19(9)(c) is more directed to the administrative process. The nomination application, on page 2 of that document, identifies that the position to be filled is that of Cook and on page 8 identifies the nominee. The Tribunal is therefore satisfied that the application for approval identifies a need for the nominee to be employed in the position of Cook under the applicant’s direct control such that reg 5.19(9)(c) is met.
The Tribunal notes that the applicant operate a café/restaurant located in Cairns, northern Queensland. It’s hours of operation are from 6am to 5pm on five days per week and from 6am to 8pm on two days per week.
The Tribunal has considered the information provided about the operation of the café/restaurant including the job description, organisation chart, menus and the oral evidence of Mr Kenyon. It is satisfied that the nature and size of the business warrants the employment of a Cook and notes that the nominee has been employed in that position (on a full-time basis) for more than four years.
The Tribunal has also had regard to the certificate of the Regional Certifying Body (RCB), being a Form 1404 issued by Chamber of Commerce and Industry of Queensland dated 13 November 2019, which states that the nomination satisfies the following requirements:
·The nominee will be paid at least the annual market salary rate for the occupation.
·There is a genuine need for the nominee to be employed in the position under the direct control of the applicant.
·The position cannot be filled by an Australian citizen or Australian permanent resident who is living in, or would move to, the local area where the position is located.
Accordingly, the Tribunal is satisfied that there is a genuine need for the nominee to be employed in the position of Cook under the direct control of the applicant.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The employment contract (dated 25 June 2023) states that the nominee will be employed on a full-time basis for at least 38 hours per week plus overtime where required. The employment agreement can be reviewed in three months from the date of commencement of the nominee’s employment and there is nothing in these documents which prevents the renewal of the employment term for a further period. Therefore, the Tribunal is satisfied that the requirements in rr 5.19(9)(e) and (f) are met.
To determine the annual market salary rate, the applicant has provided evidence of the proposed salary for the applicant of $60,000 per annum. The Tribunal has considered this offering against the minimum rates stipulated in the Restaurant Industry Award 2010 and is satisfied that the market salary exceeds the award rate. The applicant has provided copies of its recent BAS, financial statements and company taxation returns to show the significant quarterly turnover within the business. Based on the evidence provided, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

Section 5 in IMMI 18/033 specifies the annual earnings for the purposes of r. 2.72(15)(b) to be $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
The Tribunal is satisfied that the applicant has provided evidence supporting the method used to determine the annual market salary rate for the nominated position of Cook ANZSCO 351411 and is satisfied that the proposed salary of $60,000 per annum for a standard 38 hours per week, plus paid overtime.
For these reasons the requirements of reg 2.72(15)(c) are met.
The TSMIT is $53,900, so the salary of $60,000 per annum plus paid overtime that has been offered to the nominee exceeds this amount. For these reasons the requirements of reg 2.72(15)(d) are met.
The Tribunal is satisfied that this remuneration arrangement gives to the nominee a salary in excess of the minimum required under the relevant industrial award. For these reasons the requirements of reg 2.72(15)(e) are met.
There is no evidence that the nominee has been offered any non-monetary benefits as part of the employment contract. Therefore, the proposed remuneration represents a cash figure. Therefore, the annual earnings will still be above the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
The Tribunal satisfied that there is no information known to Immigration to indicate that the annual market salary rate for the nominated position is inconsistent with Australian labour market conditions relevant to the occupation of Cook. For these reasons the requirements of reg 2.72(15)(g) are met.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The Tribunal has considered the terms and conditions of the nominee’s employment set out in the employment and updated employment contracts, and notes that the nominee’s employment conditions appear to accord with the requirements of the National Employment Standards.
Therefore, based on the evidence before it, the Tribunal is satisfied that the nominee’s terms and conditions of employment will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace ta the same location.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 187 visa.
The applicant has nominated the position of Cook ANZSCO 351411. The Tribunal notes that this occupation appears in IMMI 19/047.
Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).
Regulation 5.19(12)(a) – the position is located at a place in regional Australia
In the application, the applicant indicated that the address where the nominee was to be employed was located in Cairns City, Queensland. That postcode is specified in the relevant instrument as being in regional Australia. The applicant has provided a lease agree agreement, rent payment statement, utility bills. Based on the evidence, the Tribunal is satisfied that the position is located in Cairns City and that the position is located in regional Australia.
Accordingly, the requirements of reg 5.19(12)(a) are met.
Regulation 5.19(12)(b) – the business operated by the nominator is located at that place
The evidence provided establishes that the applicant’s business is conducted at Shop 1, Cairns Central Shopping Centre, 21 Spence Street, Cairns City, Queensland.
Accordingly, the requirements of reg 5.19(12)(b) are met.
Regulation 5.19(c) – the position cannot be filled by an Australian citizen or Australian permanent resident who was living in, or would move to, the local area concerned.
Mr Kenyon explained to the Tribunal that the business has experienced considerable difficulties in recruiting appropriately skilled and experienced workers, particularly for the positions of Chefs and Cooks. He said that most prospective employees in the hospitality industry in Cairns are ‘backpackers’ who are not interested in relocating to Cairns on a permanent basis. The business has also been unable to recruit a suitable local worker to fill the nominate position and accepts Mr Kenyon’s evidence that the business faces significant competition for staff from other local businesses in the hospitality industry.
The Tribunal is satisfied that the applicant made considerable efforts to recruit a Cook and that it has not been able to identify a person who has the qualifications, experience and desire to relocate to Cairns to work in the nominated occupation on an ongoing basis.
Accordingly, the Tribunal finds that the position cannot be filled by an Australian citizen or Australian permanent resident who was living in, or would move to, the local area concerned.
Regulation 5.19(12)(d) – the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant legislative instrument
The relevant legislative instrument is IMMI 19/047. The occupation proposed by the applicant was Cook which has the sic-digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code 351411 and is specified in the instrument.
The tasks specified in the ANZSCO for the occupation of Cook include the following:
·Examining foodstuffs to ensure quality.
·Regulating temperatures of ovens, grills and other cooking equipment.
·Preparing and cooking food.
·Seasoning food during cooking.
·Portioning food, placing it on plates, and adding gravies, sauces and garnishes.
·Storing food in temperature-controlled facilities.
·Preparing food to meet special dietary requirements.
·May train other kitchen staff and apprentices.
The nominee’s duties according to the job description are as follows:
·Conduct cooking and food preparation with due care and skill.
·Follow business methods and procedures to ensure consistency.
·Follow and implement food safety and hygiene standards.
·Assist Chefs as instructed or directed.
·Pack deliveries in accordance with FIFO procedure.
·Use supplies with FIFO procedure.
·Check food items for quality and consistency and/or spoilage.
·Minimise waste.
·Adhere to portion control measures.
·Report any identified issues to the Head Chef or Director immediately.
·The Director or Head Chef may assign you additional tasks or duties from time to time.
Although these tasks do not mirror the tasks set out in the ANZSCO, the Tribunal is satisfied that they correspond substantially to those tasks.
Regulation 5.19(12)(e) – the occupation applies to the nominee in accordance with the relevant instrument
The occupation of Cook is specified in instrument IMMI 19/047. The ANZSCO classification for this occupation provides that the occupation is a Skill Level 3 occupation and that most occupations in the unit group have a skill level commensurate with an AQF certificate III including at least two years of on-the-job training, or AQF Certificate IV. The classification further provides that at least three years of relevant experience may substitute for the formal qualifications. The applicant has provided evidence of successfully completing a Certificate III in Hospitality (Asian Cookery), a Certificate IV in Hospitality and an Advanced Diploma in Hospitality, which show that the nominee’s qualifications meet the requirements of the nominated occupation.
Accordingly, the requirements of reg 5.19(12)(e) are met.
Regulation 5.19(12)(f) – the Minister has been advised by a body that meets the requirements set out in reg 5.19(12)(g) (the RCB) about the three matters specified in paragraph 41 above.
The certificate referred to in paragraph 41 has been submitted to the Department and the Tribunal. The Tribunal accepts the advice given by the RCB.
Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Amanda Mendes Da Costa
Member

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

[2023] AATA 2873

30 August 2023

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