Exotic Pizza Pty Ltd (Migration)

[2018] AATA 4392

Exotic Pizza Pty Ltd (Migration) [2018] AATA 4392 (4 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  EXOTIC PIZZA PTY LTD

CASE NUMBER:  1604481

HOME AFFAIRS REFERENCE(S):           BCC2016/1059266

MEMBER:Karen Synon

DATE:4 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 04 October 2018 at 1:55pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – practice and procedure – no information by prescribed period – nominated position – cook – inapplicability condition – food options readily available – limited service restaurant – out of date information – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 140GB,140GBA, 359
Migration Regulations 1994 (Cth), rr 2.72, 2.73


CASES
Hasran v MIAC [2010] FCAFC 40

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 Immigration and Border Protection on 18 March 2016 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).

2. The applicant applied for approval on 11 March 2016. 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. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa). She was satisfied that the position was that of a fast food cook and that the sponsor provided fast food or takeaway food and therefore the nominated occupation did not correspond with an occupation specified by the Minister in the relevant instrument.

4. The applicant applied for review of the primary decision on 1 April 2016 and provided a copy of the department’s decision to the Tribunal.

5. The applicant was represented in relation to the review by a registered migration agent however that migration agent’s lapsed on 19 October 2017 about which the former registered migration agent was advised by letter on 11 December 2017 with a copy of the same correspondence sent to the applicant.  No response was received from either the former registered migration agent or the applicant, to the Tribunal’s request to advise it of any arrangements that had been made on behalf of the applicant.  Also in the same letter, the former registered migration agent and the applicant were advised that ‘until advised of any new authorised recipient arrangements by the applicant, we are required to continue sending all correspondence to you’.  We will also send the applicant copies of all correspondence sent to you”.

6. The Tribunal wrote to the applicant via its representative on 6 April 2016 acknowledging the lodgement of the applicant for review.  In this letter the Tribunal advised “[i]f you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible”.  No substantive information has been received from the applicant since the time it lodged the application for review.

7. On 10 September 2018 the Tribunal wrote to the applicant, in accordance with s.359(2) of the Act, inviting it to provide “undated and current information” in relation to all of the requirements in Regulation 2.72.  The letter, without limiting the information that might be given, specifically highlighted 9 types of information including:

   ·Information about the role and duties of the nominated position and how they correspond to the nominated occupations description in ANZSCO; and

   ·If the nominated occupation is subject to an inapplicability condition (also known as a caveat) information about why the caveat does not apply in the circumstances of this case.

8. The invitation was sent to the applicant via its nominated authorised recipient’s (also its former registered migration agent) email address which had been provided in connection with the review.  As noted above (at paragraph 5) because this person’s migration agent status had lapsed on 19 October 2017, a copy was also sent to the applicant’s last advised email address.  The applicant was advised that if the information was not provided in writing by 24 September 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicant did not provide the information within the prescribed period and no extension was requested or granted.  Nor have any submissions, correspondence or evidence been received in the period since 24 September 2018.

10. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant via its authorised recipient at the representative’s advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the information. In making this decision the Tribunal notes that the applicant has not provided any substantive materials, written arguments or information since the lodgment of the application for review on 9 March 2016 , over 2½ years ago and nor has the Tribunal had a response to any of its correspondence.

11. For the following reasons, the Tribunal has decided affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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). In addition, for nominations made from 23 November 2013, s.140GBA must be met.

    Specified occupation

13. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

14. The applicant is a Standard Business Sponsor.  It nominated the position of ‘Cook’ which is an occupation specified in IMMI 17/060.  On 19 April 2017 and further on 1 July 2017 changes were made to the 457 program in respect of this occupation which is now subject to an ‘Inapplicability condition’, which means that the nomination of this occupation is now subject to additional considerations or caveats.

15. The occupation of ‘Cook’ is now subject to the following inapplicability conditions:[1]

    (7) The position is involved in mass product ion in a factory setting.
    

    [1] IMMI 17/060.  Notes 7 and 8.

    (8) The position is in a limited service restaurant.

16. The delegate in refusing this nomination found that the tasks of the nominated occupation were those of a fast food cook in a fast food or take away food service operator.  She was not satisfied, after reviewing all the information provided, that there was sufficient information to demonstrate that the business provided services other than fast food and takeaway dining and that establishments of this type have an emphasis on speed, convenience and competitively priced food.  She noted that typically the food options advertised are always available and unlikely to be affected by dietary and culinary trends or availability of specific seasonal produce.  Further, the delegate noted the limited range of menu items provided at the business and the focus on specific food such as pizza and pasta.

17. In the absence of any submissions or evidence being provided to the Tribunal, it has considered all of the evidence provided to the department in support of the nomination application.  This includes: the job description; registration and lease agreement of the business premises; a submission from the representative; pay slips (not in relation to the nominee); an employment agreement; an organisational chart and a copy of an advertisement and invoice for a restaurant manager and 2 cooks placed in ‘Indeed’ in September 2015.

18. The Tribunal notes that the material relating to the position appears to have been provided to the Department over 2½ years ago and some of it is dated over 3 years ago and that although the above limited evidence was provided; this material is now substantially out of date. The applicant has not provided to the Tribunal any recent information about the specified occupation and the ways in which it meets r.2.72(10)(aa) although this information was specifically highlighted (see paragraph 7) in the Tribunal’s invitation issued under s.359(2).

19. The applicant did not respond to the Tribunal's letter of 10 September 2018 inviting it to provide information which demonstrates that the nomination meets all the requirements of Regulations 2.72.  Nor has any information been received since 24 September or indeed at any stage during the review period.

20. As no additional information has been provided to the Tribunal and because the applicant has lost his entitlement to a hearing and the Tribunal was therefore not able to take oral evidence from him about the nominated occupation and environment in which the nomine would work, including updated information about the range and types of food the nominee would be required to cook, the Tribunal only has very limited and significantly outdated information before it.  In particular no information has been provided that would satisfy the Tribunal that the position is not located in a limited service restaurant.

21. At the time of decision, the Tribunal is not satisfied that there is sufficient recent evidence about the nature of the position. On the limited evidence before it, the Tribunal is not satisfied that the nominated occupation satisfies the requirements of r.2.72(10)(aa) as inapplicability condition 8 precludes the approval of a Cook position in a limited service restaurant.

22. For these reasons the requirements of r.2.72(10)(aa) are not met.

23. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved.  Accordingly, the decision under review must be affirmed.

    DECISION

24. The Tribunal affirms the decision not to approve the nomination.

    Karen Synon
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

    (1)This regulation applies to a person who is:

    (a)is any of the following:

    (i) a standard business sponsor;

    (ii) a person who has applied to be a standard business sponsor;

    (iii) a party to a work agreement (other than a Minister);

    (iv) a party to negotiations to a work agreement (other than a Minister); and

    (b)a party to a work agreement (other than a Minister);

    who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

    (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that the person is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister).

    (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

    (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

    (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

    (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

    (7)For paragraph (6) (a), the Minister may disregard the fact that 1 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.

    (7A)In addition to subregulation (6):

    (a)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

    (b)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

    (iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

    (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

    (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

    (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

    (b)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a standard business sponsor;

    the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

    (c)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a party to a work agreement;

    the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

    (9)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.

    (10)If the person is a standard business sponsor — the Minister is satisfied that:

    (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

    (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and

    (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

    (c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

    (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

    (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ASCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ASCO; or

    (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

    (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ANZSCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ANZSCO; or

    (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

    (f)the position associated with the nominated occupation is genuine; and

    (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

    (i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

    (ii)      if:

    (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

    (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

    (iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

    (iv)     unless subparagraph (ii) applies—the holder:

    (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

    (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

    (h)either:

    (i)       the person will:

    (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

    (B)give a copy of that contract to the Minister; or

    (ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

    (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

    (a)the terms and conditions of employment; and

    (b)the base rate of pay, under the terms and conditions of employment;

    that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

    (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

    (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

    (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

    (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

    (c)the Minister considers it reasonable to do so.

    (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

    (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

    (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

    (B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

    (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

    (B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

    (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.