EPOCH T.M PTY LTD (Migration)

[2021] AATA 2797

EPOCH T.M PTY LTD (Migration) [2021] AATA 2797 (15 June 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Epoch T.M Pty Ltd

CASE NUMBER:  1821973

HOME AFFAIRS REFERENCE(S):          BCC2018/298589

MEMBER:  Wan Shum

DATE:  15 June 2021

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 15 June 2021 at 11:17am

CATCHWORDS

MIGRATION – Employer Nomination – approval of nominated position – Cook – specified occupation – inapplicability conditions – IMMI 18/004 – limited service restaurant – dine-in facility with seating for 70 customers – opening hours of the business extend beyond those of the shopping centre – 70 to 80% of the food served is prepared from scratch – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 July 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

1. The applicant applied for approval on 18 January 2018. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

1. The position and occupation nominated in this case was Cook with ANZSCO code 351411. The person identified for the position was Mr Mehedi Hasan, who lodged an application for a Subclass 457 visa in association with this nomination.

1. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa) because the delegate considered that the position was in a ‘limited service restaurant’.

1. As a consequence, Mr Hasan’s visa application was refused.

1. The applicant and Mr Hasan sought review of their respective decisions and both parties are represented in relation to the review by a registered migration agent.

1. Mr Pero Ilievski appeared before the Tribunal on behalf of the applicant by video conference on 23 March 2021 using MS Teams. Mr Hasan also gave evidence. The representative was present by video.

1. 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

1. 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 sponsor and meets the requirements in r.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, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

1. On the information before the Tribunal, the applicant was registered with ASIC on 12 January 2017 and commenced operating a business named Sourdough Bakery located in Hornsby Westfield Shopping Centre. The applicant currently operates an Italian-themed café/restaurant/wine bar under the name of Cuori. According to the ASIC records, there are three shareholders who appear to be family members, which was confirmed at the hearing by Mr Pero Ilievski, who is the sole Director and Secretary. As stated above, Mr Mehedi Hasan (the nominee) is the person identified for the position of Cook, which is the nominated occupation for the purposes of this application.

1. The nominated position of Cook is full-time and is one of four cooks currently employed, one full-time cook, one part-time and two casual. The organisation chart lists 21 employees, with

the positions of cook appearing under the head chef, who is employed on a casual basis. The remaining kitchen staff are three casual chefs and two casual kitchenhands. There is also a front-of-house manager, two baristas, one casual and one part-time, and seven waitstaff, five casual and two part-time. The head chef and front-of-house manager report to a full-time manager who in turn reports to the Director. The payroll employee summary from 30 March 2020 until 8 April 2021 lists over 30 names, which include that of the nominee.

1. For the nomination to be approved, r.2.72(10)(aa) requires that the nominated occupation, which in this case is Cook, corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph. According to the relevant instrument (IMMI 18/004), the occupation is not applicable where the nominated position is involved in mass production in a factory setting or is in a limited service restaurant.

1. That means that if the applicant’s business is a limited service restaurant, its nomination of Mr Hasan as a Cook cannot be approved for the purposes of r.2.72(10)(aa) due to note 8 of IMMI 18/004. The Tribunal will first consider this issue.

1. There is nothing to suggest that the nominated position is involved in mass production in a factory setting. In terms of whether Cuori is a ‘limited service restaurant’, the Tribunal has had regard to the definition set out in the instrument, which provides that it includes the following:

(a)  a fast food or takeaway food service;

(b)  a fast casual restaurant;

(c)  a drinking establishment that offers only a limited food service;

(d)  a limited service cafe, including a coffee shop or mall cafe;

(e)  a limited service pizza restaurant.

1. The Tribunal has considered the Departmental policy guidelines set out in PAM3 regarding the assessment of whether an establishment is a ‘limited service restaurant’, noting that it is not bound by policy. The business describes itself as a café, restaurant and wine bar for Italian food lovers. It is not a franchise. The photographs of the site indicate that there is a takeaway counter, a separate outdoor seating section which is covered by a canopy and an indoor seating section. Other photographs show the prepared and plated food, as well as the kitchen which is marked on the floorplan as ‘open kitchen’, and the nominee cooking at the stovetop. The Tribunal finds that the kitchen is a commercial kitchen.

1. A copy of the liquor licence was also provided, which was approved in 2017 when the business was Sourdough Bakery. The business type is recorded as ‘restaurant’ which, according to the NSW Liquor Act 1997 means ‘premises (however described) in respect of which the primary purpose is the business of preparing and serving meals to the public.’ ‘Meal’ in turn means a ‘genuine meal consumed by a person at a dining table’. The classification under the liquor licence is therefore not determinative of whether the business is a limited service or full-service restaurant as the definition does not distinguish between these types of restaurants which are identified in the Regulations and policy.

1. Based on the evidence provided, and taking into account the applicant’s website ( the Tribunal is satisfied that:

·the applicant operates a restaurant/café/wine bar in Hornsby, Westfield shopping centre that has a seating capacity for 70–100 diners, operating from 7am to 4pm Monday to Wednesday and 7am to 9pm, Thursday to Sunday;

·it is a standalone venue and is not part of a franchise or chain;

·it is licensed to serve alcohol;

·the business currently employs a restaurant manager, nine kitchen staff who report to the head chef and a front-of-house manager with two baristas and seven floor staff;

·the business takes table bookings by phone, although the majority of customers would be walk-in. Customers who dine in are greeted by front-of-house staff and shown to a table, either inside or outside depending on preference, and provided with a glass of water. They are asked whether they want drinks and are offered a drinks menu and a copy of the current menu. The floor staff take orders from diners for food and/or drinks at the table and are brought their food and/or drinks by floor staff. Crockery/dining utensils, cutlery, glassware and napkins are provided. The payment for the meal is made at the end;

·the menu is focused on Italian cuisine, with a separate breakfast menu and lunch and dinner menu. The lunch and dinner menu lists entrées, pizzas, panini and focacce, burgers, pasta and mains and salads, with the most expensive dishes being $26. Previously, the Sourdough Bakery’s offering was a mix of different cuisines;

·the business offers weekly specials on Tuesdays, $25 for All you can eat pizza after 5pm;

·the food is prepared from scratch on site in a commercial-grade kitchen, with the exception of hash browns, which are purchased frozen, and the dry pasta, which is purchased from the supplier. The dough for the pizza is made on site;

·the business has a liquor licence and serves wine and beers, and also have a range of non-alcoholic drinks as well as coffee; and

·when orders come into the kitchen, the head chef receives the docket, shouts the order out to the kitchen staff who prepare and cook the food, the head chef tastes and plates the food and then passes the food through the window to be served. They do not re-heat food. The morning is spent prepping vegetables and processing the meat with fresh ingredients arriving from the supplier.

1. In assessing the nature of the business, the Tribunal is satisfied that the applicant’s business is not a fast food or takeaway service: although the Tribunal acknowledges that it takes orders for food to be picked up by customers, it is satisfied that it is predominantly a dine-in facility with seating for 70 customers. The Tribunal has carefully considered whether it is a limited service café such as a coffee shop or mall café, noting that the business is located at Westfield Hornsby. In making that assessment, the Tribunal has considered the range of food and drink offered and whether the opening hours of the business are essentially those of the shopping centre/mall. In this case, the opening hours are listed as 7.30am to 9.30pm on the Westfield Hornsby website with the listed opening hours of Westfield shopping centre

1 Accessed on 23 March 2021.

being from 9am to 5 or 5.30pm except for Thursdays, when hours are extended until 9pm. The rosters for March 2021 provided following the hearing have employees commencing work at 7am and finishing at 9pm on Thursdays to Sundays, with shorter hours on Monday to Wednesday until 4pm. The rosters also indicate that the number of employees increases from four persons Monday to Wednesday to up to 13 persons on weekends, which appears to comprise of at least two chefs, three cooks and three waitstaff. Given the opening hours of the business extend beyond those of the shopping centre, it appears that the business is not aimed solely at customers of Westfield shopping centre/mall. In addition, the business is accessible from outside the shopping centre/mall, with Council approval having been sought to occupy and operate along the perimeter. Noting also that bookings are taken and the comprehensive nature of the menu, the Tribunal is of the view that it is not a limited service café.

1. The Tribunal is further satisfied that, while the venue incorporates a bar, it is not predominantly a drinking establishment that offers only a limited food service. In terms of whether it is a limited service pizza restaurant following the change to the business to Cuori, the Tribunal notes that the menu has a focus on Italian cuisine and a section devoted to woodfired pizzas. However, the pizzas are only part of the food items offered with the menu incorporating a separate breakfast menu and kids menu, and entrées, mains, salads and desserts. There are pasta dishes, seafood and even burgers. Thus, while woodfired pizzas are a focus of the business, it does not consider the business is a limited service pizza restaurant.

1. As to whether it is a fast casual or limited service café, the Tribunal notes that reviews of the business on Google, while generally positive, reflect that the experience of customers is that the restaurant is of a casual nature. It further notes that the relevant Award is the Hospitality Industry Award and not the Restaurant Industry Award. However, the other factors which the Tribunal considers support a claim that it is not a fast casual restaurant or limited service café, is the employment of a number of chefs, including a head chef who oversees the design of the menu and kitchen staff, as well as a front-of-house manager who oversees the waitstaff who, it is claimed, provide full table service. It is claimed that there is seating for 80 to 100 diners, although it was later confirmed to be 70. The photographs provided indicate that seating is available inside the part of the venue situated in Westfield shopping centre with a number of tables situated in the mall. The Tribunal accepts that customers are seated at restaurant/café tables noting that the photograph depicts a sign ‘Please wait to be seated’, and that orders are taken at the table and payment at the end of the meal. The meals are served on crockery and with cutlery for customers dining at the premises, which the Tribunal accepts based on the photographs provided after the hearing. The Tribunal was also provided with invoices from various suppliers which reflect the evidence at hearing of the purchase of raw ingredients and prepared ingredients, such as pasta and bread. The nominee’s evidence, which the Tribunal accepts based on the invoices, is that around 70 to 80% of the food served is prepared from scratch, including the pizza bases which are prepared in-house. The nominee said that when the business became Cuori, the head chef changed recipes and ingredients to make the food more authentically Italian. This further adds weight to the Tribunal’s view that the business is not a limited service restaurant.

1. The Tribunal has had regard to the Departmental policy and considers that, in relation to the applicant’s business, there are both factors that would support a finding that the applicant’s business should be classified as a fast casual restaurant, and also factors that tend to indicate that it need not.

1. The factors which tend to support a finding that it is a fast casual restaurant are that it is a casual eatery and the majority of customers are walk-in and dine for around 30 to 40 minutes with nothing priced over $26. On the other hand, it is a standalone business operating the kinds of hours a restaurant would be expected to operate at least four days per

week, is licensed, and its food is predominantly made on site from fresh ingredients, by a team of chefs and cooks in a commercial-grade kitchen with table service being offered to dine-in customers who can choose to sit inside or outside. It is advertised as a ‘Restaurant/Cafe/Wine Bar’ and the menu reflects options for a more extended dining experience with three courses.

1. Having regard to all the information, the Tribunal considers that the restaurant is a casual Italian restaurant but is somewhat differentiated from a fast casual restaurant or a limited service pizza restaurant because of the engagement of chefs and cooks in the kitchen and level of table service. It thus does not consider that the applicant’s business should be characterised as a limited service restaurant (as that term is explained in PAM3). Therefore, the nomination is not excluded by note 8 of IMMI 18/004.

1. Given this, the Tribunal finds that the occupation is applicable to the person identified in the nomination in accordance with the instrument, and that the requirements of r.2.72(10)(aa) are met.

1. There is no requirement for the nomination to be supported by a specified organisation and the requirements of r.2.72(10)(b) do not apply.

1. Given these findings, the Tribunal has proceeded to consider whether the remaining requirements are met.

The nomination must comply with the prescribed process

1. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.

1. The Tribunal is satisfied, from having reviewed the documents on the Department’s file, that:

·the applicant nominated an occupation under s.140GB(1)(b) (being Cook) and thus meets r.2.73(1A)(a);

·the applicant identified Mr Hasan, the nominee, as the person who would work in that occupation, and thus meets r.2.73(1A)(b);

·the nomination was made using the approved form and fee, and thus meets r.2.73(2), (3), (5) and (9);

·the applicant identified the nominee, Mr Hasan, in the nomination, thus meeting r.2.73(4), (4A) and (5); and

·the nomination included the location at which the occupation would be carried out, and the 6-digit ANZSCO code for that occupation (ANZSCO code 351411), thus meeting r.2.72(4).

1. The application form included a question requiring certification that the nominator had not engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B); as well as the relevant certifications mentioned in r.2.72(10) or r.2.72(11): r.2.73(4) and (4A) and the applicant made the necessary certifications.

1. For these reasons, the requirements of r.2.72(3) are met.

Nominator is a standard business sponsor or party to a work agreement

1. Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.

1. Departmental records indicate that the applicant was approved as a standard business sponsor for a five-year period commencing 11 May 2018. That sponsorship remains in force and the Tribunal is satisfied that the applicant, at the time of this decision, is a standard business sponsor.

1. For these reasons the requirements of r.2.72(4) are met.

Identification of the nominee

1. Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

1. Based on information set out in the application form, the Tribunal is satisfied that the applicant has identified Mr Hasan as the person to undertake the nominated occupation and that he had applied for a Subclass 457 visa.

1. For these reasons the requirements of r.2.72(5) are met.

Requirements for existing Subclass 457 visa holders

1. The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.

1. The nominee had previously held a Subclass 457 visa until 22 September 2017. But by the time this nomination was made, the nominee no longer held this visa. Therefore, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.

Information about the nominated occupation

1. Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;

·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement, the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

·the location(s) at which the nominated occupation is to be carried out.

1. On the basis of information provided in the application, the Tribunal is satisfied that the applicant provided the name of the occupation, Cook, and the corresponding 6-digit ANZSCO code as part of the nomination. The address where the person will be employed was given as 2/236 Pacific Hwy, Hornsby on the nomination form and the Tribunal finds that the nomination gave the location for the position at which the nominated occupation is to be carried out.

1. For these reasons the requirements of r.2.72(8A) are met.

Certification relating to conduct under s.245AR(1)

1. Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.

1. As indicated above, the applicant provided the required certification as part of the nomination by responding ‘yes’ to the question that they had not engaged in such conduct on the nomination form.

1. For these reasons the requirements of r.2.72(8B) are met.

No adverse information known to Immigration

1. Regulation 2.72(9) 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 rr.1.13A and 1.13B.

1. Having reviewed the records available to the Tribunal, it is not aware of any adverse information known to Immigration about the applicant or a person associated with the applicant. Given this, the requirements of r.2.72(9) are met.

Terms and conditions of employment

1. Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.

1. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

1. In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA). These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10AB).

1. The contract of employment from November 2017 sets out the terms and conditions of employment and indicates that the nominee’s gross salary will be $60,000. The contract sets

out that superannuation of 9.5% will be paid which is in accordance with the applicable legislation.

1. The annual earnings of the nominee would thus be less than the salary of $250,000 specified in IMMI 10/028. Accordingly, the requirement of r.2.72(10AA) must be met.

1. In this case, there is no Australian citizen or permanent resident performing equivalent work at the same location and the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.

1. In accordance with IMMI 09/113, the Tribunal has had regard to the ‘relevant information’ which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australian Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.

1. The applicant provided market salary information for job advertisements for similar positions from September 2017 to January 2018 but given the time that has passed since the nomination was made, the Tribunal requested updated information.

1. The Tribunal was provided with a copy of the relevant section of the Hospitality Industry General Award (2010) published 1 February 2021 and links to job advertisements from Seek website for a Cook/Chefs, although only one was full-time.

1. In terms of the Award,2 according to Clause 24, an annualised salary must be at

   least 125% of the minimum weekly rate that would otherwise be applicable under Table 3 which sets out the minimum rates over the year. The related visa applicant holds a Certificate IV in Commercial Cookery. Based on the classifications in the Award, it would appear that the relevant classification would be Cook Grade 2 or 3. The minimum rate for a Cook Grade 2 is $832.80 which would make the annual salary $54,132. For a Cook Grade 3, the weekly rate is $877.60 and the annual salary would be $57,044. The salary offered is therefore above the Award rate for both these grades.

1. Given this, the Tribunal is satisfied that the salary of the nominee is no less favourable than that which would be offered to the relevant Australian equivalent in the same workplace.

1. The Tribunal is further satisfied that the contract of employment provided has standard provisions relating to leave that are consistent with those in the Fair Work Act 2009.

1. Accordingly, the Tribunal is satisfied that the nominee’s terms and conditions will be no less favourable than the terms and conditions that would apply to the equivalent Australian employee.

1. For these reasons, the requirements of r.2.72(10)(c) are met. The applicant is required to pay the nominee in accordance with the terms of the contract.

Base rate of pay

1. Regulation 2.72(10)(cc) requires that the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident

2  be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 (currently $53,900).

1. However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive- based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.

1. Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): r.2.72(10AB).

1. The Tribunal finds from the evidence provided that the nominee’s annual earnings will be

   $55,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc).

1. The Tribunal is satisfied that the nominee’s annual earnings exceed the TSMIT, and that (based on the market salary rate information assessed in the section above) the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will also be greater than the TSMIT.

1. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(10)(cc) are met.

Position must be genuine

1. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This 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.

1. The position associated with the nominated occupation has the job title of Cook. The nominee had previously been approved for the same position nominated by the applicant, and the applicant is seeking to extend the nominee’s employment as a Cook, although as mentioned above the business has now changed to a different restaurant.

1. The duties set out in the attached schedule to the contract were:

   ·Clean food preparation areas, cooking surface, and utensils.

·Prepare food for service (e.g. chopping vegetables, butchering meat, or preparing sauces).

·Monitoring and tracking temperature records of oven, grill and other cooking equipment.

·Prepare a variety of foods: meat, seafood, poultry, vegetables and cold food items.

·Cover, date and correctly store all bits and pieces and food prep items.

·Constantly use safe and hygienic food handling practices.

·Operate large-volume cooking equipment such as grills, deep fryers or ovens.

·Cook menu items in cooperation with the rest of the kitchen staff.

·Ensure that food comes out simultaneously, in high quality and in a timely fashion.

·Assist with all duties as assigned by the head chef.

1. The duties set out in the employment contract reflect those corresponding to the occupation of Cook, which is described in ANZSCO as a person who “[i]dentifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services.” The Tribunal has also considered the evidence of the nominee at the hearing against the tasks in ANZSCO for this occupation. The Tribunal accepts that the nominee is engaged in preparing and cooking food, seasoning food during cooking, portioning and plating food while menu planning is the task of the head chef and he does not appear to be involved in training other kitchen staff and apprentices. The Tribunal considers that the tasks of the position reflect the structure of the organisation and is satisfied that overall the duties of the nominated occupation correspond to those of the occupation of Cook (ANZSCO code 351411).

1. The Tribunal has also considered whether the position is genuine, in terms of whether it is consistent with the applicant’s business and size of the business which includes consideration of the turnover. The turnover of the business has reduced in the past 12 months to slightly above $1 million. In this regard, the Tribunal is cognisant that the business has been operating as Cuori for less than a year and its financial performance has been affected by the COVID-19 restrictions. A recent roster indicates that 13 to 14 staff work over the weekends, although with fewer during the week. Having regard to all of the evidence, this suggests to the Tribunal that the position of Cook is genuine.

1. The Tribunal thus finds that the position associated with the nominated occupation is genuine and that the requirements of r.2.72(10)(f) are met.

Employment under contract

1. Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in a written instrument.

1. The contract of employment signed by the Director and the nominee on 30 November 2017 sets out the nominee’s salary as being $60,000 plus superannuation, commencing from the date of approval of the 457 visa.

1. Therefore, the requirements of r.2.72(10)(h) are met.

Work agreements

1. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.

1. As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.

Labour market testing

1. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB–140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

1. For these purposes, 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. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:

·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

1. The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.

1. The nominated occupation of Cook is a Skill Level 3 occupation in ANZSCO and is not exempt from labour market testing under IMMI 13/137.

1. The position of full-time Cook was advertised on 20 December 2017 on the website and then on the Gumtree and adzuna websites, the latter being a paid job advertisement, on 21 December 2017.

1. Given the applicant had been working at the location, the advertising for the position appears to have only been undertaken for the purposes of meeting the labour market testing requirement and was not a genuine attempt to recruit an Australian for the position.

1. Nevertheless, the job advertisement for the occupation of Cook appears to meet the labour market testing requirements as it is within the relevant period specified for the purposes of s.140GBA(3)(a) and evidence of the testing was given with the nomination as required by s.140GBA(3)(b). Given this, the requirements of s.140GBA are met.

Conclusion

1. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

DECISION

1. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Wan Shum Member