Food Pulse Pty Ltd (Migration)

[2022] AATA 1678

Food Pulse Pty Ltd (Migration) [2022] AATA 1678 (21 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Food Pulse Pty Ltd

REPRESENTATIVE:  Ms Eidy Melanie Douglas (MARN: 1573017)

CASE NUMBER:  1833314

HOME AFFAIRS REFERENCE(S):          BCC2018/4368163

MEMBER:Wan Shum

DATE:21 March 2022

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 21 March 2022 at 4:35pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – chef – labour market testing – requirement inconsistent with international trade obligation and does not apply in this case – scope of business operations and duties of position – full-service with casual features, not limited-service, fast casual – COVID-19 restrictions – nominee’s continuing work in position – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), (3)(aa), 140GBA
Migration Regulations 1994 (Cth), Schedule 2, cls 2.72, 2.73

CASE
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 6 November 2018 to refuse to approve a nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. Food Pulse Pty Ltd applied for approval on 8 October 2018. 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 relevant instrument specifies that the occupation of chef, being the occupation nominated for a Subclass 482 visa, is in the Medium-term stream.

3. The person identified for the position was Mr Lam Yung Pin, who lodged an application for a Subclass 482 visa in association with this nomination.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy labour market testing requirements and found that s 140GBA was not met.

5. As a consequence, Mr Pin’s visa application was refused.

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

7. Mr Ian Chin, Director, appeared before the Tribunal on behalf of the applicant by video conference on 2 February 2022 using MS Teams. The Tribunal also received oral evidence from Mr Lam Yung Pin, the person identified for the position, by videoconference.  The representative was present throughout.

8. 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

9. 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.

10. On the information before the Tribunal, the applicant was registered with ASIC on 21 August 2017 and commenced operating a business named Hiss and Smoke in 2018 offering Japanese food located at the WA Government operated complex at Yagan Square, in Perth.

11. According to the ASIC records, there is only one director, Mr Chin, and five shareholders. There is another business name registered with the applicant from 1 April 2019, Godzilla Kare, but during the hearing Mr Chin informed the Tribunal that this business was not currently operating. As stated above, Mr Pin (the nominee) is the person identified for the position of Chef, which is the nominated occupation for the purposes of this application.

12. The delegate considered that, on the information presented, labour market testing was not undertaken in the required manner, and that s 140GBA(3)(aa) was not met, and did not approve the nomination.

13. It was submitted, and the Tribunal agrees, that the labour market testing condition does not apply to the applicant in this case as it would be inconsistent with an international trade obligation, specifically the Malaysia-Australia Free Trade Agreement (MAFTA), which is specified in the relevant instrument LIN 21/075.

14. For these reasons, the labour market testing requirements in s 140GBA are not applicable in this case and the Tribunal has proceeded to consider whether the other requirements for the approval of the nomination have been met.

    The nomination must comply with the prescribed process

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

16. The Tribunal finds, on the information before it, that:

    ·the applicant is nominating the occupation of Chef under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa and meets reg 2.73(1);

    ·the nomination was made using the approved form and fee as required by regs 2.73(3), (4) and (5);

    ·the nomination is not subject to the nomination training contribution charge as it was made prior to 12 August 2018 when the charge became payable: reg 2.73(5A);

    ·the nomination is in the Medium-term stream: reg 2.73(6);

    ·the applicant has identified the nominee, Mr Pin, in the nomination: reg 2.73(8);

    ·the nomination included the name of the occupation and the corresponding six digit code, the location/s at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the annual turnover for the nomination. The Tribunal notes that Yagan Square is currently undergoing redevelopment, but the Tribunal was informed that the applicant still operates Hiss and Smoke at this location and is considering moving to a larger space within the same complex upon completion of the redevelopment. Based on information available to the Tribunal, which includes Google and social media posts, the Tribunal accepts that the applicant is operating this business at the Yagan Square complex at the time of its decision: reg 2.73(9).

17. In response to the question on the nomination form regarding whether the person has engaged in conduct that contravenes s 245AR(1) of the Act, the answer provided was ‘No’. This is accepted as meeting the requirement that the nomination includes written certification as required by reg 2.73(12).

18. In response to the question on the nomination form regarding whether the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws, the answer given was ‘Yes’. This is accepted as meeting the requirement that the nomination includes written certification regarding this matter, noting that the occupation of Chef is not exempt: reg 2.73(13).

19. An affirmative answer was also given in response to the following questions on the nomination form: whether the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO; whether the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and, unless the occupation is exempt, whether the position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, whether the position is in the person’s or an associated entity’s business. This is accepted as meeting the requirement that the nomination includes written certification of these matters, noting that the occupation of Chef is not exempt: reg 2.73(14).

20. For these reasons the requirements of reg 2.72(3) are met.

    No adverse information known to Immigration

21. 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.

22. The Tribunal is not aware of any adverse information known to Immigration about the applicant or a person associated with the applicant.

23. Given this, the requirements of reg 2.72(4) are met.

    Nominator is a standard business sponsor

24. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

25. The applicant was approved as a standard business sponsor on 12 June 2018 for a period of five years. For these reasons, the requirements of reg 2.72(5) are met.

    Payment of debt mentioned in s 140ZO

26. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

27. There is no information before the Tribunal that the applicant has any outstanding debt under s 140ZO.

28. For these reasons, the requirements of reg 2.72(5A) are met.

    Requirements for existing Subclass 457 or Subclass 482 visa holders

29. 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).

30. The nominee was the holder of a Subclass 457 visa which has since ceased. Given this, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.

    Specified occupation

31. 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 18/048. The occupation must also apply to the nominee in accordance with the instrument.

32. For the nomination to be approved, reg 2.72(10)(aa) requires that the nominated occupation, which in this case is Chef, 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.

33. That means that if the applicant’s business is involved in mass production or a limited service restaurant, its nomination of Mr Pin as a Chef cannot be approved for the purposes of reg 2.72(10)(aa) due to note 8 of IMMI 18/004. The Tribunal will first consider this issue. The Tribunal is making its assessment of the business based on the operations of Hiss and Smoke located at Shops GS.21 and GS.22, Market Hall, Yagan Square in Perth.

34. The copy of lease agreement provided indicates that it is a Retail Shop Lease under the Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA), which commenced on 3 March 2018 for a period of 10 years. The core trading hours are 11am to 8pm, Sunday to Wednesday and 11am to 10pm, Thursday to Saturday. According to the Hiss and Smoke website, the opening hours are 12pm to 8pm Tuesday, Wednesday and Sundays; 12 to 10pm Friday and Saturdays; 12pm to 9pm Thursdays and closed Mondays.

35. There is nothing to suggest that the nominated position is involved in mass production in a factory setting. In terms of whether Hiss and Smoke 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.

36. The Tribunal has considered the Departmental policy guidelines set out in PAM3 regarding the assessment of whether an establishment is a ‘limited service restaurant’, while being cognisant that it is not bound by policy.

37. Mr Chin gave evidence during the hearing that table service is provided, with customers being seated at the counter or at tables on the floor, and provided with the menu. The floor staff take the order (food and drinks including alcoholic drinks such as sake/beer/wine). Meals are made to order by the chef and kitchen staff from raw ingredients, using a range of equipment including hot plate and yakitori barbeque charcoal stove. The submissions refer to the chef preparing the meals according to the order and making variations in accordance with dietary requests of the customers from time to time.

38. The Tribunal notes that the venue is focused on one cuisine and is described on its Facebook page as “[i]nspired by the gastropub culture in Japan” and that “Hiss and Smoke specialises in Japanese street eats and charcoal-grilled skewers.” This seems to reflect the casual nature of the venue. The Director explained that this description was more about the ambience they wished to create for the venue and they had incorporated counter seating around the open kitchen and bar which is popular with customers who enjoy the smoke element while looking at their food being prepared and cooked.

39. The Tribunal asked about the other venue which they opened at Yagan Square, Godzilla Kare, and the Director advised that the physical shop was shut in December because of COVID-19. The specialty curry dish at that venue is now incorporated into the Hiss and Smoke menu. The photographs of the Hiss and Smoke site indicate that there is a counter, and Mr Chin gave evidence that it seats up to 23 persons, and on the floor there are 30 tables for two persons, which can be adjusted for larger groups, and a round table which can seat five persons. The Director also gave evidence that there is external seating, and it was submitted that the venue can easily accommodate 86 persons in total.

40. From the photographs on its website and other social media, the Tribunal notes that Hiss and Smoke is a standalone venue, which is open on one side. Mr Chin explained that it has a commercial kitchen with specialised equipment including a grill for cooking the specialty yakitori skewers, an okonomiyaki section and a deep-frying section. The opening hours, as set out on the website and confirmed by Mr Chin at the hearing, are what the Tribunal consider to be typical restaurant hours. He said initially that the landlords had wanted to close the Market Hall earlier but the core hours for the Market Hall complex were negotiated when the complex first opened in 2018 in an attempt to meet the requirements of the 18 operators. The Market Hall is locked by the security team at Yagan Square so it is not possible to operate outside the core hours set out in the lease.

41. The updated organisation chart provided on 8 March 2022 reflects that there is a kitchen team and front of house team, with an executive Chef, identified as Jase Wong, the nominated Chef position and three others under the kitchen team, as well as a Restaurant Manager, Ms Megumi Inoshita, and a front of house team, consisting of Mr Raymond Kwok (bartender), Mr Kanon Selhurst, Livia Ong and Edward Poh. When asked about the kitchen team at the hearing, Mr Chin gave evidence that Mr Pin is the main chef in the Hiss and Smoke kitchen with Jase Wong being the Group Executive Chef. Mr Chin said that he had started a noodle restaurant in 2012, which he no longer operates, and Mr Wong was hired then. Mr Wong floats between the outlets and runs two or three outlets, and has been less active at Hiss and Smoke of late, although Mr Pin gave evidence that Mr Wong comes in on Fridays and Saturdays to work in the kitchen. Mr Chin confirmed that the menu was created by Mr Wong and has not changed much since then, with the staff coming up with specials together. In response to the Tribunal’s queries regarding the payroll, it was confirmed that Mr Wong is engaged as a consultant by the business and sends a weekly invoice for consulting fees. The Tribunal was also informed that Mr Raymond Kwok was engaged on a similar basis.

42. Based on the evidence provided, the Tribunal is satisfied that:

    ·the applicant operates a Japanese restaurant at Yagan Square complex that has seating capacity for 86 diners;

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

    ·it is licensed to serve alcohol;

    ·the business employs a chef and other kitchen staff and a restaurant manager, a bartender and one other floor staff member;

    ·the business provides dine-in and takeaway services with customers who are dining-in greeted by the restaurant manager or floor staff and shown to the counter or a table depending on preference, and provided with a menu. The floor staff take orders from diners for food and/or drinks at the table which are brought out by floor staff. Food is served on crockery and disposable chopsticks are available at the table/counter. The payment for the meal is made at the end, at the till;

    ·the menus are focused on Japanese ‘izakaya’ cuisine, with a separate lunch menu. The lunch menu consists of rice/noodle and okonomiyaki (Japanese style pancake) dishes ranging from $13 to $18 with sides from $3 to $7. The dinner menu lists ‘okonomiyaki’ which is a Japanese savoury pancake, ‘agemono’ which is deep-fried foods, ‘yakimono’ being the charcoal grill skewers, and ‘others’ which includes edamame (soybeans in their pods) and beef, mushroom and fish dishes that do not fall within the three categories. The majority of dishes cost less than $20, with the most expensive dish being 10 skewers of meats for $34;

    ·there is a mix of fresh food, vegetables and meats, dry goods and Japanese food products purchased from the supplier, JFC Australia Co Pty Ltd. The sauces and marinades will be prepared on site in a commercial-grade kitchen;

    ·the yakitori is grilled on demand ie. when ordered. They do not re-heat food. The kitchen staff will chop and prepare vegetables and marinate the meat from the supplier; they have extra people in the kitchen on Friday and Saturdays helping with preparation from 12pm to 5pm.

43. In assessing the nature of the business, the Tribunal notes that orders can be made for food to be picked up by customers, but accepts that it is predominantly a dine-in facility with seating for 80+ customers in total at tables or at the counter. The Tribunal is satisfied that the applicant’s business is not a fast food or takeaway service; nor does it consider that it is a limited service café such as a coffee shop or mall café.

44. Having regard to the current menu and also the drink and food breakdown of income provided for the period from 1 January 2019 to 1 January 2022, the Tribunal is further satisfied that it is not predominantly a drinking establishment that offers only a limited food service. Nor does it consider that it is a limited service pizza restaurant.

45. As to whether it is a fast casual restaurant, the Tribunal is of the view that the restaurant is of a casual nature. The Tribunal has had regard to the Departmental policy and considers that, in relation to the applicant’s business Hiss and Smoke, 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, include that it is focused on one cuisine, with the majority of dishes being less than $20, and the most expensive dish being 10 skewers of meats for $34. Mr Chin said that customers typically spend $50 per person and dine for one to one and a half hours, with an even faster turnaround for lunch. On the other hand, it is a standalone business operating the typical hours of a restaurant and its food is predominantly made on site from fresh ingredients, in a small commercial-grade kitchen with table service being offered to dine-in customers who can choose to sit inside or outside. The Tribunal accepts that, while the business will aim to serve customers quickly, especially at lunch times, the food does involve preparation in a commercial-grade kitchen with a kitchen team and floor staff. It has also taken into account that dishes are served on crockery and table service is provided. Finally, the relevant fair work award is the Restaurant Industry Award (as opposed to the Fast Food Industry Award).

2. Having regard to all the information, the Tribunal considers that Hiss and Smoke is a casual Japanese restaurant that can be differentiated from a fast casual restaurant because of the commercial kitchen and level of table service. It thus does not consider that the applicant’s business should be characterised as a limited service restaurant. Therefore, the nomination is not excluded by note 8 of IMMI 18/004.

3. 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 reg 2.72(10)(aa) are met.

4. There is no requirement for the nomination to be supported by a specified organisation and the requirements of reg 2.72(10)(b) do not apply. For these reasons the requirements of reg 2.72(8) are met.

   Position must be genuine and full-time

5. 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.

6. It is claimed that the nominated position of Chef is full-time and the Tribunal was provided with a copy of the employment contract signed on 25 November 2019 and recent payslips of the nominee.

7. Having regard also to the evidence at the hearing, it accepts that the nominee has been carrying out duties consistent with the tasks set out under the ANSZCO description for this occupation and has done so for several years now. Such a position is typical for a restaurant business and the Tribunal is of the view that the position is genuine.

8. The employment contract provides that the position is full-time. The nominee has been working with the applicant since 2019 and has continued to work throughout this period, except for periods when the restaurant was closed for business due to COVID-19 lockdowns. The Tribunal finds that the position is full-time having regard to the evidence provided.

9. For these reasons, the requirements of reg 2.72(10) are met.

   Employment under contract

10. 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 LIN 19/212. 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)), and 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.

11. The nominated occupation is not specified in the relevant instrument, and the applicant is not an overseas business sponsor. The information before the Tribunal indicates that the nominee will be engaged as an employee under a written contract of employment by the applicant directly. The Tribunal has been provided with a copy of the contract signed by the employer and nominee dated 25 November 2019. It notes that the annual salary is higher than the salary currently paid to the applicant as indicated on the payslip and the payroll employee summary for the past two financial years. The applicant should ensure that the salary paid to the applicant is the same as the amount on the payslip.

12. For these reasons, the requirements of reg 2.72(11) are met.

    Annual earnings

13. The occupation is nominated for a Subclass 482 visa in the Medium-term stream and the nominee’s annual earnings will be $65,000, which is less than the annual earnings specified in the relevant instrument for reg 2.72(15)(b) of $250,000. Therefore, the Tribunal 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 these circumstances, the following requirements must be met:

    ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: 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. Regulation 2.57A provides for the meaning of ‘earnings’: 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 specified in the instrument IMMI 18/033 (TSMIT), which is $53,900, 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 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).

14. The submissions refer to the Restaurant Industry Award 2020 applying, which means that it is necessary to determine what an Australian worker performing equivalent work would be paid by reference to the Award (refer to s 7(a) and s 8(a) of IMMI 18/033). The nominator claims that there is no Australian worker performing equivalent work so it is s 8(a) of IMMI 18/033 which applies in this case. It was submitted that the occupation of Level 6 Cook Grade 5 salary rate in the Award was used as “guidance” for the nominee’s salary to ensure he is not paid below the award rates. The submissions refer to “the combination of weekly rates of $25.83 and weekend rates, including Saturday rates of $32.29 and Sunday rates of $38.75, have also been included in consideration for [the nominee’s] salary… to ensure he is not underpaid for working on weekends.” It was submitted that the annual salary of $65,000 was based on the agreement between the employer and the nominee based on the nominee’s skills and work experience with guidance on the salary rates derived from the Award.

15. Although not explicitly stated, it appears, based on this, that the annual market salary rate (AMSR) was determined by reference to the annual salary agreement provided for under cl 20 of the Award, which allows for an employer and employee to agree to an annualised salary arrangement that makes an allowance for overtime rates etc that would otherwise apply, which “must be at least 125% of the minimum weekly rate that would otherwise be applicable.” Clause R4.2 of the Award states that the minimum weekly rate (excluding overtime etc) for the position is $981.50 per week or $51,038 per annum based on a 52 week year. The AMSR is $63,797.50.

16. The Tribunal finds that the requirements of reg 2.72(15)(c) are met.

17. The Annual Market Salary Rate of $63,797.50, excluding any non-monetary benefits, for the occupation is not less than the TSMIT, and therefore the requirements of reg 2.72(15)(d) are satisfied.

18. The nominee’s annual earnings of $65,000 in relation to the occupation are higher than the AMSR, which means it will not be less than the rate for the occupation. For these reasons, the requirements of reg 2.72(15)(e) are satisfied.

19. The nominee’s annual earnings, excluding any non-monetary benefits, will not be less than the TSMIT, and the requirements of reg 2.72(15)(f) are satisfied.

20. The Tribunal is not aware of any information known to Immigration that indicates the AMSR is inconsistent with Australian labour market conditions relevant to the occupation, and reflects salaries for Chefs in Perth in recent job advertisements. The Tribunal finds that the requirements of reg 2.72(15)(g) are satisfied.

    Employment conditions

21. 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. In addition, 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).

22. The Tribunal is not aware of any 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. The employment contract reflects terms and conditions that appear consistent with the Award and the Fair Work Act 2009 (Cth) and other applicable legislation. The Tribunal therefore finds that the requirements of reg 2.72(18)(a) are met.

23. There is no evidence before the Tribunal that the applicant has engaged in any discriminatory recruitment practices, which means that the requirements of reg 2.72(18)(b) are also met.

    Nomination training contribution charge

24. 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).

25. The applicant is liable to pay the charge and the amount of charges applicable for the Subclass 482 visa is currently $1,200 per year of the nomination as the annual turnover is less than $10 million. The applicant paid $5,130 in respect of this nomination on 8 October 2018, which included $4,800 for the training contribution charge.

26. Given this, the requirements of s 140GB(2)(aa) are met.

    Conclusion

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

    DECISION

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

    Wan Shum
    Member