De Toni Patisserie & Bakery Pty Ltd (Migration) - [2024] AATA 560

De Toni Patisserie & Bakery Pty Ltd (Migration) [2024] AATA 560 (22 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  De Toni Patisserie & Bakery Pty Ltd
REPRESENTATIVE:  Mr Kane Downs (MARN: 0962296)
CASE NUMBER:  2104689
HOME AFFAIRS REFERENCE(S):          BCC2020/1376071
MEMBER:Alan McMurran
DATE:22 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 22 March 2024 at 11:06am

CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – chef – genuine position – wholesale premium patisserie – tasks more like pastrycook than chef – extensive documentation and submissions – autonomy, creativity and responsibility – previous sponsorship of another nominee on same terms approved – nominee’s current work in position and application for visa – labour market testing inconsistent with international trade obligation – terms of Australia/UK Free Trade Agreement – advertising for position found no other appropriate candidate – decision made without hearing necessary – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA(1)(c), (2), 359(2), 360(2)(a)
Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Project 42 Pty Ltd (Migration) [2022] AATA 2200
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 13 April 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 24 March 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, De Toni Patisserie & Bakery Pty Ltd, applied for approval on 16 April 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 of Chef (ANZSCO 351311) is the occupation nominated for the visa applicant, Ms Cherylle De Gracia, a 40 year-old British Citizen (“the nominee”), for a Subclass 482 visa in the Medium-term stream. The nominee has lodged a separate application for the visa, which was refused following the nomination refusal. The visa refusal is also subject to review in proceedings number 2107968.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy sub-cl 2.72(10)(a) of the Regulations, because the occupation is not ‘genuine’. This was because the delegate found the position description more aligned with the role of a Pastrycook and not a Chef.
The applicant was represented in relation to the review. The applicant provided detailed submissions and documents in response to a Tribunal invitation under s 359(2) of the Act. The Tribunal has considered those submissions and all the available information referred to below in these reasons. The Tribunal has found it can conclude the review favourably for the applicant under s 360(2)(a) and without a hearing being necessary.
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 the present case is whether the applicant meets the criteria for approval of the nomination. The relevant criteria are set out below.
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, where applicable, must be met.
The Tribunal has available information including extracts from the Department’s nomination and visa application files, the related Tribunal files, and the recent submissions from the representative. The information includes material provided recently and which was not available to the Department for consideration.
The Tribunal has also had regard to the Act and the Regulations[1], relevant case law, the ANZSCO guide for the occupation, relevant legislative instruments, Department policy and the AAT’s publicly available Practice Directions, guides and guidelines.
[1] S140GB and reg 2.72
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.
On the available information, the Tribunal is satisfied the applicant is nominating an occupation[2] which includes the corresponding 6 digit code under s 140GB(1)(b), and has identified the nominee as the proposed applicant for a Subclass 482 visa under reg 2.73(1) in the Medium-term stream pursuant to the relevant instrument [3]. The nominee is nominated to work full-time in the nominated occupation.
[2] Chef ANZSCO 351311
[3] LIN19/048 (compilation) commenced 11 March 2019.
The occupation is subject to two inapplicability caveats. Firstly, as to mass produced product in a factory setting, or secondly, where the position is located in a limited service restaurant.[4] In either of such environments, the position is not available. A limited service restaurant includes a fast food or takeaway food service, a fast casual restaurant a drinking establishment offering only a limited food service, a limited service café including a coffee shop or mall café, and a limited service pizza restaurant.
[4] LIN 19/048 conditions 7,8.
The Tribunal is satisfied from the Departmental information that the application was made on the approved form, and the fee paid together with the nomination training contribution charge applicable and collected from the applicant at the time of lodgement, which is in accordance with the current requirements for payment of the fee and as assessed by the Department accordingly.
The nomination includes the proposed medium-term stay for up to 4 years under an employment contract, granted on the basis of the nomination. The applicant’s annual turnover as submitted (FYE 2021), exceeded AUD3 million. The applicant has provided evidence that it currently employs 9 chefs, 3 managers including an executive chef, a pastry chef, trainee, kitchen hand and a driver.
The Tribunal finds that the application includes the following certifications:
a.the relevant 6-digit occupation code, Chef ANZSCO 351311, with the name of the occupation, identifying the nominee in the nomination.
b.the head office location at Frenchs Forest, Sydney, NSW, where the occupation is carried out in a purpose-built commercial kitchen facility.
c.the applicant’s turnover at the time of application (16 April 2020) at AUD3,072,458.
d.the applicant has not engaged in conduct that contravenes s 245AR (1) of the Act relating to paying for visa sponsorship or a sponsorship-related event.
e.the nominee’s original employment contract dated 25 March 2021 updated as at 12 March 2024. The contract is a standard form employment agreement which complies with Commonwealth, and State, employment laws.
f.the nominator’s certification states the tasks of the nominated occupation include a significant majority of the tasks specified for the occupation of Chef, ANZSCO 351311, and that the qualifications and experience of the nominee are commensurate with those specified for the occupation in accordance with the relevant instrument. The occupation is not exempted from any additional requirements as specified in accordance with the relevant instrument.[5]
[5] IMMI 18/035
For these reasons the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no evidence or information before the Tribunal of any adverse information known to Immigration about the applicant or a person associated with the applicant.
For these 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 purpose of this criterion is to ensure that a person who is a standard business sponsor or a party to a work agreement when they make the nomination is still a standard business sponsor or a party to a work agreement when the decision on the nomination is made.[6]
[6] Explanatory Statement to SLI 2009, No 115, p.26.
Department records confirm that the applicant is an approved business sponsor for the period from 8 April 2021 to 8 April 2026.
For these reasons 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 information before the Tribunal that the applicant has any outstanding debt under s140ZO of the Act, and which has not been paid in full.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. 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 instrument in force at the time the nomination is made, that is, LIN19/048.
The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal has considered the available information and the detailed written submission made to the Tribunal on 20 September 2023 concerning the role and the nominee. The statement includes:
“The Nominee is a trained and experienced pastry chef and had completed her studies in Australia. She has years of experience as a chef and creating tasting and testing pastries and desserts at world class standard. And her experience has only expanded after working in the role while waiting for her case to be heard by the Appeals Tribunal.”
The phrase “applies to the nominee” in the regulation bears its ordinary meaning. The Tribunal is satisfied on the available information that the nominee is trained as a Chef, and that the occupation as nominated for the position, Chef ANZSCO 351311, applies to the nominee in accordance with the instrument.
For these reasons the requirements of reg 2.72(8) are 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.
The Tribunal’s analysis follows.
Full-time position
Reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The available evidence including a copy of the employment contract for the nominee and recent payslips, confirms the employment is full time and which the Tribunal accepts is in fact the case.
Is the position ‘genuine’?
This was the provision that troubled the delegate.
There is no specified definition of ‘genuine’. The phrase needs to be considered in the particular business context submitted, and from the facts arising. Those facts relied upon in this instance are contained in the application and Department information provided, the applicant’s detailed submission of 20 September 2023 and from information generally available from the internet as to the position of Chef and the different roles to which that epithet applies.
The position of ‘Chef’ is described in ANZSCO as: “Chefs plan and organise the preparation and cooking of food in dining and catering establishments. Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group”.
Qualifications are described as: “At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.”
Tasks for the role include:
- planning menus, estimating food and labour costs, and ordering food supplies
- monitoring quality of dishes at all stages of preparation and presentation
- discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
- demonstrating techniques and advising on cooking procedures
- preparing and cooking food
- explaining and enforcing hygiene regulations
- may select and train staff
- may freeze and preserve foods
The applicant has provided information about the business and the Tribunal accepts that the applicant conducts a catering establishment from a commercial kitchen, and is not a restaurant or dining-in facility. Similarly, there is no evidence before the Tribunal that the business is conducted in a factory setting with mass-produced product. The evidence is and the Tribunal accepts that the applicant manufactures product to meet a variety of ordering schedules from its clients and which will differ according to the client orders.
The delegate was concerned that the tasks specified in the job description were more those of a Pastrycook than a Chef, hence, the role was not genuinely that of a Chef in a catering establishment. The applicant’s evidence from its organisation chart is that it employs several pastry chefs (including the nominee), who work under the head pastry chef, Klemen Popit.
The Tribunal has paid particular attention to the description of the role in the business context, the size and scale of the organisation and its activities, and the nominee’s employment background.
The nominee’s movement record shows that she arrived in Australia on a working holiday subclass 417 visa on 2 September 2012.The applicant was granted student visas and a subclass 485 post graduate work visa which ceased on 17 April 2020. The nominee has since been working for the applicant while waiting for the outcome of this nomination application and her related visa application, which was refused when the nomination was refused. The visa refusal is also subject to review in the Tribunal.[7]
[7] AAT case 2107968
The nominee’s role with the applicant commenced with her employment formally on 1 April 2020. The applicant was employed as a pastry chef and remains in that position.
The difference between a Chef and Cook can be described as follows. Chefs are “trained to understand flavors, cooking techniques, create recipes from scratch with fresh ingredients, and have a high level of responsibility within a kitchen. A cook is an individual who follows established recipes to prepare food.”[8]
[8] >
The applicant has provided a detailed submission[9] on the role, as aligned with the applicant’s business. The business is described as a wholesale patisserie. The applicant also sells cakes and pastries direct to the public and “provides desserts for First and Business class of some of the world's best airlines as well as large catering contracts for businesses in Sydney”.
[9] 20 September 2023
The applicant’s website provides information and illustrations of its specialised and individual pastry items. It caters for specific orders from regular clients and provides delivery and collection services. The website information includes the following:
“…in 2010 when Klemen Popit and his family decided to move to Australia and expand already successful business to Australia.
After completing Le Cordon Bleu Culinary Institute he decided to open a wholesale patisserie in Sydney. We cater for various markets like events, various venues, weddings, cruise ships, airlines, wholesale distribution centres... We are proud to be using premium ingredients like Callebaut chocolates, Ravi fruit purees, French and NZ butter so we can offer best possible quality to our customers.
When first started there were just Klemen and Malci, today we are proud to work alongside 32 team members. Production kitchen is located on Sydney's beautiful Northern Beaches in Frenchs Forest”.
The submission continues:
“Chefs can work in restaurants and patisseries. While it isn't expected a Chef would work in a franchise or small bakery they are certainly common in larger and specialised Patisseries. An extract from the Seek website (screenshot attached) confirms:
Pastry Chefs may be employed in commercial kitchens as the Chef de Partie (Station Chef) of the pastry department. or in patisseries. bakeries and cafes. Pastry Chefs may also be self-employed.
Pastry Chefs may be required to work early hours or night shift s depending on their place of employment.
The owner is an Executive Chef and is in charge of the operation. However. he cannot be the only creative force behind the products and needs some chefs to help create the products, manage teams to prepare for catering, menu planning, and quality check the items. The Chefs are ultimately responsible for the products produced for each customer on the day.”
The submission points out that the applicant has previously successfully sponsored a chef for the same role as that of the nominee, where it was accepted by the Department that the duties described aligned with those for the role. The applicant submitted a copy of the previous approval letter for a subclass 186 visa nomination for another chef working for the applicant, approved on 24 February 2022, and a nomination approval made 25 July 2018 for the same chef for a subclass 482 visa.
The submission is that the nominee is performing the same work and role as the previously successfully nominated employee and that there is no evident reason why the two employees performing the same role ought to be treated differently. The Tribunal finds there is some significant weight in that argument, as it could not find or identify how the positions for the same role were different in fact, and where one nomination was approved and the other (this nomination) was not.
The applicant gave examples of other pastry chefs who work in that role. The applicant submits that there are different roles for chefs including chefs who specialise in entrees, main courses, desserts and pastries as well as different styles of cooking. (Asian, European, etc).
The common factors for chefs as illustrated by ANZSCO are found in their tasks, and in the generic description of a person who prepares cakes and pastry goods differing in volume and variety. The Tribunal finds it is satisfied in this instance that the nominee is involved in training pastry cooks, monitoring products for presentation, kitchen hygiene, meeting customised orders for clients, checking and monitoring ingredients, and alignment principally with the other chefs on duty, and supervising “a team of cooks”, checking for quality and presentation in conformity with customer orders. The nominee is also involved in designing pastry menus with the other chefs and has considerable experience in the role since 2020.

Considering all the available information at the time of decision, the Tribunal finds that the nominee is genuinely performing the role of Chef, specifically as a pastry chef, and that the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI18/035.
In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)). If the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)).
In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met. Furthermore, the nominated occupation is not exempt from the requirement.
The Tribunal finds on the available information that the applicant has produced a written contract of employment signed by the parties on 1 April 2020, and updated in 2022. A copy of the agreement has been submitted. The Tribunal is satisfied that the nominee will only be engaged as an employee under the written employment agreement aligned with the copy submitted.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the 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 (AMSR) for the occupation has been determined by the applicant by reference to instrument IMMI18/033 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 (TSMIT) specified in the instrument at $53,900.00; unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and (g); and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, 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): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 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).
As the annual earnings in relation to the occupation will not be at least the specified amount ($250,000.00), the requirements of reg 2.72(15) must be met.
The nominee in her current role as a senior pastry chef and in the environment described, which is not a restaurant or eating establishment is not covered by a relevant industrial award for restaurants and dining-in establishments.
The applicant refers to a general award[10] which is applicable to food, beverage and tobacco manufacturing industries. That award provides a senior employee (Level 6 ) full-time weekly rate of $1,026.20, or the equivalent of $53,336.24 per annum. In addition the award provides that “despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award” and which includes allowances and other work arrangements, such as location. The salary must be aligned and competitive with industry standards and any other relevant award.
[10] Food, Beverage and Tobacco Manufacturing Award 2020
The applicant has negotiated a starting salary in 2020 of $55,000 per annum plus superannuation which meets the minimum award entitlements at that time. In 2022, the nominee’s salary was increased to $70,000.00, which is her salary at the time of decision. Pay slips for the nominee have been submitted.
The applicant employs a large number of chefs. A comparable employee as at the date of application (April 2020) to that of the nominee is identified, together with that person’s salary and contract, to illustrate that similar roles with the applicant are paid similarly. Internet information available for the role of pastry chef indicates current salary in the industry at the time of decision to be in a range from $66,000.00-$73,000.00.[11]
FWO
[11] See e.g. Seek Job Search >
The evidence further is that no issues have been recorded with the Fair Work Ombudsman or the Department concerning employment issues or payment of salary. The Tribunal finds that the applicant’s salary equals at least the AMSR for the occupation by reference to the industry standard as referenced above.
Earnings - summary
For the reasons given and relying upon the provided industry and occupation evidence for the occupation of senior pastry chef, where an expected average salary would be greater than $66,000.00 per annum, the Tribunal is satisfied that the requirements in the legislative instrument,18/033, as to the method of determination of the annual market salary rate have been followed.
For these reasons the requirements of reg 2.72(15)(e) are met.
The Tribunal has found that the nominee’s earnings for the position in relation to the nominated occupation are not less than the applicable TSMIT minimum of $53,900 as specified.
For these reasons the requirements of reg 2.72(15)(f) are met
There is no information before the Tribunal to indicate that the AMSR is inconsistent with Australian labour market conditions relevant to the occupation. The evidence submitted shows the nominee is currently paid an average salary ($70,000) for a senior pastry chef at the time of decision, and which is commensurate with what 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 as at the time of decision.
The Tribunal concludes for these reasons that the requirements of reg 2.72(15)(g) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
The Tribunal has examined the nominee’s proffered employment contract and had regard to the evidence about the employment terms and conditions, as updated at the time of decision.
The Tribunal finds that there is no information that indicates the nominee’s employment conditions (earnings considered separately) will be less favourable than those for the Australian equivalent.
The employment contract relied upon is a standard agreement which includes statutory requirements required by the Fair Work Act (Cth) and State provisions for holiday pay, and accrued sick leave and compassionate leave.
The phrase “discriminatory recruitment practices” is not a defined term. The Tribunal finds there is no evidence before it that the applicant has engaged in any discriminatory recruitment practices, based on the available information and applying the language of the expression in accordance with its ordinary meaning and by reference to the evidence of the contract proffered to the nominee.
For these reasons the requirements of reg 2.72(18)(b) are met.
Labour Market Testing
Labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. The applicant must advertise the role as required by law, unless the requirement is subject to possible exemption.
Is the applicant exempted?
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the labour market testing condition:
(a)unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or
(b)it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2) as above.
The sub-section 140GBA(2)provides:
(2) For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.
Is there any LMT exemption applicable?
In this instance, the Tribunal finds there is no information that the major disaster exemption under s 140GBB applies.
The skill and occupation exemption in s.140GBC provides that the Minister may, by legislative instrument, specify an occupation for the skill and occupational exemptions.
On 17 March 2018, instrument IMMI 13/137 was repealed so that there are currently no listed skill-based specified occupations which are exempt from LMT.
Would the application of LMT requirements be inconsistent with Australia’s international trade (“ITO”) obligations?
The instrument LIN21/075 applies in this case. It specifies that compliance with the LMT requirement must not be ‘inconsistent’ with Australia’s international trade obligations “determined in a legislative instrument made under subsection 140GBA(2) to require the person to satisfy the labour market testing condition, in relation to the nominated position (paragraph 140GBA(1)(c))”[12]
[12] Explanatory statement
The Explanatory Statement relevantly sets out that: “the international trade obligations are determined for subsection 140GBA(2) in LIN 21/075”.
Not all of Australia’s international trade obligations will necessarily create an exemption. The Tribunal has determined that it is necessary to analyse the relevant international trade agreements under the legislative instrument to critically examine whether they contain obligations that would be inconsistent with the labour market testing condition[13].
[13] See Project 42 Pty Ltd (Migration) [2022] AATA 2200 per DP Redfern (8 July 2022) (“Project 42”)
In Project 42, the Deputy President rejected an argument that “the effect of clause 4(a) of the relevant GATS Schedule, the terms of which must be closely examined, has the effect of exempting compliance with the labour market testing conditions because it would be inconsistent with the movement of natural persons provisions contained in the GATS.”[14] The decision was referring to an interpretation in that instance which was directed to “intra-corporate” transfers from a GATS member country to Australia, and did not apply to just “any movement” of a person because of an employment contract or sponsorship which was not “intra-corporate”. In other words, the application of the exemption may be limited notwithstanding the existence of an international trade agreement, and depending upon the particular circumstances of an agreement.
[14] At [95]
The instrument provides that for paragraph 140GBA (1)(c) of the Act, each obligation of Australia under international law, relating to international trade, under the listed agreements is determined as an international trade obligation of Australia. The Australia-United Kingdom Free Trade Agreement (AUKFTA) is listed and came into force on 31 May 2023, described by the Prime Minister, Mr Albanese, as “the gold-standard trade agreement”[15]. It also provides for commitments on the movement of business people and to “facilitate the movement of qualified professionals between Australia and the UK” which it is intended will also “address the skills shortage in Australia”.[16]
[15]PM press release 4 May 2023
[16] ibid
Department Policy provides that an exemption applies where the nominee is a citizen of a WTO member country and is being nominated by an employer for whom the nominee has worked in Australia on a continuous, full-time basis for two years immediately before the nomination is lodged. This means that LMT would not be required for a new nomination lodged by the same sponsor or an associated entity of that sponsor provided:
othe visa applicant/holder will be staying in the same nominated position; and
oeither
§ the new sponsor is still an associated entity of the original sponsor or
§ the employer has stayed the same (that is, even if one company has ceased to exist).
The Tribunal notes that Policy, although not determinative for decision-making, is a valuable guide and assists in providing consistency and a degree of predictability as to outcomes.
As noted in the Project 42 decision, when considering Department Policy:
…the Department’s interpretation of the relevant provisions is that the relevant determination of the Minister only identifies the agreement and obligations that may be inconsistent and does not otherwise form the basis for a binding determination about whether the labour market condition would be inconsistent for the purposes of s 140 GBA(1)(c) of the Act. Guidance made in Department policy about the interpretation of legislation and legislative instruments are not binding and it falls to the Tribunal to form its own view on these matters.
On the available information the Tribunal finds that in the current case, the new nomination has been lodged for a nominee who’s passport provides that she is a UK citizen, and who is nominated by the applicant as the employer, and for whom the nominee has worked in Australia on a continuous, full-time basis for two years immediately before the application was made.
The evidence is and the Tribunal accepts that the nominee will continue to work in the same occupation, and where the employer remains as the sponsor, which circumstance has not changed.
Sub-paragraph 140GBA (1)(c) provides that:
(c) it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the person to satisfy the labour market testing condition in this section, in relation to the nominated position.
Following Project 42 guidance, and with an eye to consistency of approach, the Tribunal must form its own view on the matter and consider whether this may be a circumstance where it is necessary for the applicant to still have to satisfy the LMT requirement, because it is in fact not inconsistent with the particular trade obligation for the requirement to be met. Such a determination is based upon the particular circumstances at the time of this decision. Policy does not attempt to cover what might be ‘inconsistent’ in every circumstance.
The Tribunal has considered both the Department recommended policy outcome and the recent AUKFTA approval which now operates. The Tribunal finds that the nominee is a UK citizen, where her UK passport is in evidence, and that her role for the sponsor as a Pastry Chef has not changed since her employment on 1 April 2020, other than for her seniority in the role.
The AUKFTA provides for temporary entry for business persons in a category designated as ‘contractual service suppliers’. These entrants are described as: “Business persons with trade, technical or professional skills and experience who are assessed as having the necessary qualifications, skills and work experience accepted as meeting the domestic standard in Australia for their nominated occupation, and who are engaged by an enterprise lawfully and actively operating in Australia in order to supply a service under a contract within Australia.”
The Tribunal finds from the available information that the nominee meets the requirements outlined in the AUKFTA for a “contractual service supplier”. Article 11.4 (6) provides that neither party to the agreement shall require ‘labour market test’ as a condition for temporary entry. Annex IV provides schedules of specific commitments on temporary entry business persons. The limitations include that the applicant is engaged by an entity lawfully operating in Australia “in order to supply a service” under an Australian contract. The Tribunal finds that these provisions are applicable to the applicant in this instance and are met.
There are further limitations outlined in Appendix IV relating to Australia’s commitments with respect to certain contractual service suppliers sponsored in named sectors or subsectors, or parts thereof, set out in Table A and B to the Appendix. None of those named sectors or subsectors, or parts thereof in the two Tables, include the nominee’s occupation and which do not appear to apply to her.
The Tribunal does not find guidance from the terms of the agreement itself, other than that it applies only to occupations which are included (currently) in the Skilled Occupation List (SOL) as per the Department’s information and the relevant instrument[17].
[17] LIN 19/048
The Tribunal finds on its analysis, that overall, the AUKFTA in this instance may be used to exempt the applicant sponsor from the LMT requirement, because compelling the requirement would be inconsistent with the agreement’s terms referred to above, and the Tribunal considers may place Australia in breach of its obligations under that agreement.
This is because the nominee has “trade, technical or professional skills[18] and experience and who is assessed as having the necessary qualifications, skills and work experience accepted as meeting Australia’s standards for their nominated occupation”[19], and which is an occupation currently available on the SOL and included for nominated TSS subclass 482 visas.
Applicant’s submission on LMT – does not address the ITO
[18] Pastry chef for the enterprise
[19] AUKFTA
The Tribunal has found no information which has determined that the AUKFTA specifically applies to all occupations, as nominated in the Department’s SOL, and had made its own determination in that regard on the facts of this case as outlined above. The applicant has made no submissions in relation to Australia’s international trade obligations as may flow in this instance from the AUKFTA.
The applicant has submitted that the LMT is met regardless because the applicant advertised as required and within the relevant temporal period. The Tribunal has dealt with the applicant’s submission as follows.
Is the LMT requirement met?
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument LIN18/036.
The relevant LMT instrument provides that the advertising must be in the English language, in at least 2 advertisements, on a recruitment website with national reach in Australia, or similarly in print media with national reach, or on radio. Where the sponsor is accredited (not the case here), the advertising may appear on the approved sponsor’s website.

The advertising must continue for a period of at least four weeks from first publication and have occurred within four months of the lodgement of the application. The advertisements must include the title description of the position, skills and experience required, name of the sponsor (or the recruitment agency), and the salary for the position where the proposed earnings are lower than $96,400.
The Tribunal has had regard to the submitted summary of the applicant’s recruitment efforts and as submitted to the Department. The evidence is that three advertisements for the position appeared on line on three separate national platforms. On the available information the Tribunal is satisfied that the advertisements relied upon appeared for the requisite period of 4 weeks and within the period of 4 months prior to lodgement of the application
The Tribunal is further satisfied that the advertisements met the requirements in the instrument where the advertisements must include the title description of the position, skills and experience required, name of the sponsor (or the recruitment agency), and the salary for the position, where expressed both as an appropriate range and specified. The advertising evidence submitted shows that the correct salary for the AMSR for the position was stated in a range and the position described including the location where the work was to be carried out.
On the information submitted and the documents produced the Tribunal is satisfied that the position was advertised as required by the regulation, and that there was no other appropriate candidate who responded to the advertising who has the nominee’s skillset for the position or who was available for selection. The evidence is that the applicant received no suitably qualified applicants in response.
The Tribunal finds it is satisfied the applicant has genuinely tested the market for the appropriate employee and chosen the nominee for her particular skillset. Having met the regulation requirement for advertising, and necessarily going through the process for that purpose, does not disenfranchise the applicant from making its own decision about whom it might be best to employ, including the nominee, and where the applicant prefers to retain the nominee as the best performing and available candidate on account of her skills and experience.
The Tribunal accepts that the advertising criteria have been met. The evidence discloses to the Tribunal’s satisfaction that there was no suitable qualified and experienced Australian citizen, permanent resident, or eligible temporary visa holder available to fill the nominated position.
Further, there is no evidence that any Australian citizens or permanent residents were made redundant/retrenched, prior to the advertising being undertaken, or at all.
For these reasons, the labour market testing requirements in s 140GBA have been met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa). The applicant in this instance is liable to pay the charge, the application having been made on 15 April 2020.
The Tribunal is satisfied on the available information that the Department has collected the charge on lodgement of the application, and which has been receipted for the applicant, and which amount includes the SAF levy as calculated for the application in the Medium-term stream.
For these reasons the requirements of s 140GB (2) (aa) are met.
Conclusion
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Alan McMurran
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)…