DI NAPOLI PTY LTD (Migration) [2024] AATA 321 (22 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Di Napoli Pty Ltd
REPRESENTATIVE: Ms Cheuk Lam Karen Lo (MARN: 1681829)
CASE NUMBER: 2110762
HOME AFFAIRS REFERENCE(S): BCC2021/1303571
MEMBER:C. Packer
DATE:22 February 2024
PLACE OF DECISION: Melbourne
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 February 2024 at 1.58pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – cook – tasks of position – comparison of position and ANZSCO classification – large volume of information and documentation in more detail than nomination form – consistent and persuasive evidence – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10), 2.73CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 24 June 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 this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy Reg 2.72(10) because the delegate was not satisfied that the majority of tasks of the position or responsibility level of the position are commensurate with those of the nominated occupation or that the position can be properly described as a Chef – 351311.
The applicant was represented in relation to the review.
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 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…
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CaseChat Overview and Summary
The Tribunal was required to determine if the applicant met the criteria for approval of the nomination, specifically whether the nominated occupation and its tasks aligned with the Australian and New Zealand Standard Classification of Occupations (ANZSCO), and if the nominee possessed the commensurate qualifications and experience. Further, the Tribunal had to assess if the position was genuine and full-time, and if all procedural requirements of the regulations, including sponsorship and payment of charges, had been satisfied.
The Tribunal reasoned that the applicant had provided a substantial volume of documentation, including financial reports, organisational charts, position descriptions, employment contracts, and payslips, which offered a detailed comparison of the nominated position with the ANZSCO classification. This evidence was found to be consistent and persuasive, demonstrating that the tasks of the position included a significant majority of those specified for a Chef in ANZSCO, and that the nominee's qualifications and experience were commensurate. The Tribunal also found that the applicant was a standard business sponsor and had met all other regulatory requirements, including the genuineness and full-time nature of the position.
Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision approving the nomination.
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 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. Departmental systems show that there is no adverse information known to Immigration. The Tribunal is satisfied there is no adverse information known to Immigration about the applicant or a person associated with the applicant, within the terms of regs 1.13A and 1.13B. 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. Departmental systems show a Standard Business Sponsorship agreement was approved on 10/7/2019 to 10/7/2024. 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 shows the applicant owes a debt mentioned in s 140ZO. 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. 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, IMMI 19/048. The nominated occupation concerns a Chef 351311. This corresponds to an occupation and 6-digit code specified in the instrument in the medium-term stream. 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. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement. On 30 October 2023 the applicant provided a large volume of documents and information, including:·ASIC documents·Financial report June 2023 that shows high income and gross profit·BAS statement 1-3/2023·Detailed organisation chart, that shows the position directly under the Head Chef·Position description, chef·Position description with percentage breakdown of tasks·Nominee’s employment contract of 17 June 2021, $55,000 wage·Nominee’s paysheets: o4/11/2019 to 12/7/2021 paid $1,000 for 20 hours @$50/hro12/7/2021 to 14/2/2022, paid $27.83/hr for 38hrs = $1,057 (annual $55k)o14/2/2022 to 3/9/2023, paid $32.89/hr for 38 hours = $1,250 (annual $65k)o4/9/2023 to 30/10/2023, paid $35.42/hr for 38 hours = $1,346 (annual $70k)·Photos of restaurant and dishes, menu·Comparable ads for sous chefs