Dante Co Pty Ltd (Migration) [2024] AATA 2435 (24 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Dante Co Pty Ltd
REPRESENTATIVE: Mr John Young (MARN: 9251554)
CASE NUMBER: 2106898
HOME AFFAIRS REFERENCE(S): BCC2021/440339
MEMBER:Angela Julian-Armitage
DATE:24 June 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 24 June 2024 at 12:09pm
CATCHWORDS
MIGRATION – nomination – the nominated position was subject to an exception contained in an instrument LIN 19/048 – not one is likely to provide employment going forward – the business will not be renewing the lease – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73, 2.78
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 3 May 2021 to refuse to approve the applicant’s nomination pursuant to s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The application for approval was lodged on 23 March 2021. 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 the present case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate refused the nomination on the basis that the applicant did not satisfy reg 2.78(8) due to a finding that the nominated position was subject to an exception contained in an instrument LIN 19/048.
The applicant appeared before the Tribunal on 18 March 2024 to give evidence and present arguments and was represented at the hearing by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the subject nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has been furnished with material that satisfies…
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CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the nominated occupation, Chef (ANZSCO 351311), was subject to an exception or caveat contained within LIN 19/048, a legislative instrument governing nominated occupations. The Tribunal also had to consider whether the specific circumstances of the employment, including the nature of the business and its operations, brought the nominated occupation within the scope of these exceptions. Furthermore, the Tribunal examined whether the business would likely provide employment going forward, given that the business would not be renewing its lease.
The Tribunal reasoned that Regulation 2.72(8) of the Migration Regulations 1994 required the nominated occupation and its code to correspond to an occupation specified in the relevant instrument in force at the time of nomination. It found that the occupation of Chef was subject to LIN 19/048, which excluded the occupation if it was to be undertaken in a fast food casual restaurant or café. Based on oral evidence, the Tribunal was satisfied that the nominated occupation was to be undertaken in a franchised café within a shopping centre, exhibiting characteristics such as a limited menu with fast food traits, counter service for orders and payment, a lack of kitchen staff, and early closing hours, all of which indicated that the exceptions in the instrument applied.
Consequently, the Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved. The decision under review, which refused the nomination, was therefore affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For these reasons the requirements of reg 2.72(3) are not met.No adverse information known to Immigration Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. There is nothing before this Tribunal to indicate that there is any adverse information known to Immigration about the applicant or a person associated with the applicant. For that reasons the requirements of reg 2.72(4) are met. Nominator is a standard business sponsor Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. The nominating entity was granted a Standard Business Sponsorship on 9 April 2021, thus the requirements of reg 2.72(5) are met.Payment of debt mentioned in s 140ZO Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. There is no evidence of a debt that would trigger the provisions of s 140ZO of the Act.Requirements for existing Subclass 457 or Subclass 482 visa holders The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14). As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.Specified occupation Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument in force at the time the nomination is made. Further, the occupation must also apply to the nominee in accordance with the instrument. In the present case, the nominated occupation is that of Chef ANZSCO 351311. This occupation is subject to the provisions of reg 2.72(8) and the LIN 19/048 exceptions or caveat. The relevant instrument excludes the occupation where it is to be undertaken in a fast food casual restaurant or café amongst other things. In this case, the evidence shows that the occupation is to be undertaken in a franchised café within a shopping centre. The oral evidence before the Tribunal was that the operations of the business included a number of indicators that satisfied this Tribunal that the exceptions in the instrument applied. Those indicators include but are not limited to a limited menu with fast food characteristics, orders and payment taken at the counter, no cooks or kitchenhands employed within the business and the business being contained within a shopping centre and closing at 4 pm daily.