GOWANBRAE FOODS PTY LTD (Migration)

[2018] AATA 2840

GOWANBRAE FOODS PTY LTD (Migration) [2018] AATA 2840 (26 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gowanbrae Foods Pty Ltd

CASE NUMBER:  1602165

DIBP REFERENCE(S):  BCC2015/3386387

MEMBER:Alison Mercer

DATE:26 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 26 June 2018 at 12:38pm

CATCHWORDS

Migration – Nomination – Subclass 457 – Not a genuine position – Cook – Existing level of kitchen staff ­– Business operated at a loss – Need for position established – Staff resignations – Evidence of profit – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 140GB, 359(2)

Migration Regulations 1994, Schedule 2, rr 1.13A, 1.13B, 2.57, 2.72, 2.73, cl 457.223

CASES
Drake v MIEA (1979) 24 ALR 577
Drake and MIEA (No 2) (1979) 2 ALD 634
Hneidi v MIAC [2009] FCA 983
Lobo v MIMIA [2003] FCAFC 168

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 on 9 February 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, Gowanbrae Foods Pty Ltd (trading as La Porchetta Caroline Springs), applied for approval on 17 November 2015. 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)(f) because the delegate was not satisfied that the position associated with the nominated occupation of Cook was genuine. In reaching this conclusion, the delegate noted that the business already employed 14 kitchen staff, including a number of Cooks, Chefs and Kitchenhands. Further, the delegate noted that the business had run at a loss for the last 2 years and thus did not accept its claims that it was expanding, in the absence of independently verifiable evidence.

4. The Tribunal received a review application on 22 February 2016.  It was signed on behalf of the applicant by Mr Tony Romeo, a director, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Romeo appointed a registered migration agent, Mr Sourabh Aggarwal, as the applicant’s representative and authorised recipient for correspondence.

5. On 21 August 2017, the Tribunal wrote to Mr Romeo via his agent to invite them to attend a callover, the aim of which was to ascertain whether the applicant’s case was ready to be actively considered and/or set down for hearing, on 8 September 2017.

6. On behalf of the applicant, the agent participated in the callover by telephone on 8 September 2017 and discussed with the Presiding Member the additional updated documentation it could provide to demonstrate that it met all of the criteria in r.2.72 (not only r.2.72(10)(f)). The Tribunal also discussed with the applicant’s agent the fact that as of 19 April 2017 and 1 July 2017, the list of skilled occupations that could be nominated pursuant to r.2.72 had been amended to remove some occupations from the list and to add occupational restrictions (known as caveats) to others. The Tribunal noted that for the occupation of Cook to now be approved, it had to be established that the position was not located in mass production in a factory setting or in a limited service restaurant (which included a fast food or takeaway food service, a fast casual restaurant, a drinking establishment offering only limited food service, a limited service café including one located in a shopping centre or mall, or a limited service pizza restaurant). The agent acknowledged this new requirement and indicated that he and Mr Romeo of the applicant believed the position that they had nominated met this requirement. At the conclusion of the callover, the Tribunal indicated that it would shortly write to the applicant formally pursuant to s.359(2) of the Act to request the applicant to provide updated information demonstrating how it met all of the criteria set out in r.2.72.

7. The Tribunal did so on 11 September 2017.  On 25 September 2017, the Tribunal received a response from the applicant’s agent which included:

   ·scanned photographs of the applicant’s premises (La Porchetta Caroline Springs);

   ·copy of current menu for the applicant, and other metropolitan Melbourne La Porchetta restaurants;

   ·Council planning scheme seating diagram for the applicant’s premises, showing seating for approximately 230 internal diners and approximately 76 external diners;

   ·profit and loss statement and balance sheet for the applicant for the 2016/17 financial year;

   ·Business Activity Statement (BAS) for the applicant for the period July 2016 to June 2017;

   ·5 resignation letters, variously dated in 2016 and 2017, from employees of the applicant;

   ·employment agreement between the nominee, Kulbir Singh, and the applicant dated 24 August 2015, listing salary of $54,000 per year plus superannuation in Schedule 2 of that document;

   ·undated statement addressing the nominee’s salary and the market rates on which it was based, primarily Live Salary and Payscale remuneration surveys and job advertisements placed on Seek.com.au and Indeed.com;

   ·letter of completion dated 15 July 2015 from South Pacific Institute for the nominee for his Certificate IV in Commercial Cookery, completed between 5 May 2014 and 21 June 2015 and testamur for same;

   ·organisational chart for the applicant;

   ·ASIC current company extract for the applicant issued 22 February 2016 showing Mr Romeo as the sole director and shareholder;

   ·Department letter dated 11 August 2016 advising that the applicant has been approved as a standard business sponsor until 11 August 2021;

   ·letter dated 21 September 2017 from the applicant’s accountant and tax agent, advising that the applicant company had been operating as a restaurant since 24 August 2013, that it was able to meet its sponsorship obligations, and that its profit of $252,597 (after wages of $541,371) for 2016/7, which was an increase of over $200,000 from the previous financial year; and

   ·submission dated 23 September 2017 from the applicant’s agent.

8. In his submission, the agent made the following points (in summary):

   ·the applicant’s restaurant is located in the central shopping centre of Caroline Springs, on a busy shopping strip with lots of retail shops that attracted daily workers for meals at a reasonable price. The premises had seating for over 300 diners and offered customers either dine-in or take-away service;

   ·the applicant’s menu was wide-ranging and all items were prepared by qualified cooks and chefs with considerable experience and/or the relevant formal qualifications. There were 10 starters, 8 salads, 25 types of pizza, 14 type of pasta, 12 different types of meat, chicken and fish dishes, 4 risottos and 3 desserts;

   ·the restaurant was open from 7am to 9.30pm from Sunday to Thursday, and 7am to 10pm on Fridays and Saturdays;

   ·the applicant’s sales of $2,206,207.94 for the 2016/17 financial year represented an approximately $200,000 increase on the previous financial year, which indicated that it was a full service restaurant;

   ·the applicant’s wage bill had decreased by approximately $100,000 from the 2015/16 to 2016/17 financial year. This was due to the resignation of various employees in the most recent financial year;

   ·profit before income tax (PBIT) for 2016/17 was $252,597, which was an increase on the PBIT of $67,030 of 2015/16, and the net losses of the business had reduced by approximately $250,000, which was significant;

   ·although the business had carried forward losses from previous years, it was now anticipating making a profit in the next financial year due to increased offerings which would exhaust the previous years’ losses.  As the restaurant was now open for breakfast, demand had increased but this had placed pressure on the business to increase its recruitment of full time, reliable and experienced staff;

   ·the restaurant was a proper dine-in establishment, and not primarily a take-away or fast food outlet. Food was served at the table after the order was placed by looking at the menu and the mode of payment was by cash or EFTPOS. Dine-in customers paid after eating. The restaurant had cutlery, crockery and glassware, offered advance bookings, could hold private functions, its food was prepared by qualified chefs and cooks in its own kitchen and was served by wait staff. All of these factors indicated that it was not a limited service restaurant;

   ·the duties undertaken by the nominee were consistent with those listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary for a Cook: he spent approximately 10% of his time examining foodstuffs to ensure quality, approximately 80% of his time preparing and cooking food, approximately 5% of his time planning menus and estimating food requirements, and approximately 5% of his time training other kitchen staff and apprentices;

   ·the restaurant and food retailing industry was labour-intensive and a source of employment for 281,448 over 25,680 businesses in Australia.  The number of employees in this field was expected to grow by 6.2% over the next 5 years. This was due to increased demand for staff across the sector, including Cooks (ANZSCO code 351411), and this occupation remained on the Short term Skilled Occupation List (STSOL). Therefore, hiring staff from overseas was a viable, and valuable, option for Australian restaurants;

   ·according to the updated organisational chart, the restaurant had 25 employees: 1 Head Chef, 1 Sous Chef, 2 Cooks, 1 Apprentice Cook, 1 Head Pizza Chef, 4 Kitchen Hands (2 in the Pizza section), 1 Floor/Bar Manager, 1 Floor Manager, 1 Bar Manager and 12 Floor Staff. Recently, 5 employees had resigned;

   ·the applicant’s restaurant wished to expand its products and services and needed to have the right staff to do this. It was in genuine need of a full time Cook and wished to nominate an existing part-time employee already working as a Cook (the nominee Mr Kulbir Singh). The position was integral to the business and had not been created to facilitate the entry of the nominee into Australia;

   ·the restaurant had recently started offering breakfast and this had been a big hit with the local population. It was the first and only La Porchetta franchise in Australia offering breakfast.  Extensive marketing had resulted in an unprecedented demand for breakfast 7 days per week, underlining the need for an additional Cook, as the business was struggling to cope even with 6 Cooking staff on the payroll;

   ·all of the menu items were popular, but there was particular demand for the breakfast menu and the authentic Italian menu (especially pizzas) for which the La Porchetta franchise was known. The applicant therefore needed someone who was experienced in pizza and pasta making, preparing breakfast items such as scrambled eggs, pancakes, and who was also familiar with the La Porchetta working culture;

   ·in the case of Cooks, employers in the hospitality industry looked for experience and/or relevant formal qualifications, but also for dedication, passion for hospitality, good communication skills and attention to detail. Also essential were the ability to work in a team, in a high pressure, busy environment and to supervise staff;

   ·the nominee had all of the above attributes, as an existing part time employee (Cook) with the applicant and had a Certificate IV in Commercial Cookery (accepted in ANZSCO as meeting the required skill level to work as a Cook). The applicant had found it difficult to recruit a suitably qualified local candidate and the appointment of the nominee to a full-time role for the genuine vacancy of Cook would address this issue; and

   ·the nominee’s terms and conditions of employment were the same as would be offered to any Australian employee and exceeded the Award rate for the position.

9. On 28 February 2018, the Tribunal wrote to Mr Romeo via the applicant’s agent to invite him to attend a hearing on behalf of the applicant on 20 March 2018. The Tribunal requested that the nominee, Mr Kulbir Singh, also be available to give evidence as a witness, and that any further written submissions or documents be provided 1 week prior to the hearing; in particular, any relating to labour market testing, updated financial information about the business, an updated organisational chart and evidence of the nominee’s continued employment.

10. On 19 March 2018, the applicant’s agent requested that the hearing be rescheduled due to his urgent need to travel overseas. The Tribunal agreed and rescheduled the hearing to 13 April 2018.

11. In the meantime, the applicant’s agent provided recent BAS statements for the applicant on 19 March 2018.  On 13 April 2018, he provided an updated organisational chart.

12. On behalf of the applicant, Mr Tony Romeo appeared before the Tribunal on 13 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Kulbir Singh, and oral submissions from the applicant’s agent.

13. Mr Romeo told the Tribunal that he had been in the hospitality industry for 40 years.  Prior to opening the business of La Porchetta in Caroline Springs, he ran the La Porchetta in Watergardens, and before that, Max’s in Essendon. Mr Romeo said that he opened the business on 26 August 2013. He knew it would take 3 to 5 years to grow the business, and it was an up and coming area now, with a lot of middle class families. The area, and the business, was expanding. The business marketed itself as a family restaurant. It was open for daily for lunch and dinner, and now for breakfast, 7 days per week, and was fully licensed. The majority of customers dined in and it had a seating capacity (including outdoors) of approximately 230 and a function room that had a capacity of approximately 100 people. Reservations were taken. The kitchen was a full commercial kitchen and had 18 burners.  There were 4 to 5 Chefs working there between 5pm and 8.30pm, plus others doing prep work during the day. All the food was freshly prepared. Mr Romeo said that his son is cooking there 5 nights per week but it was difficult to get and retain loyal employees. Mr Romeo said that, despite advertising and recruiting Chefs, many worked for a month or so and then move on. He wanted people to stay for 3 to 4 years, or longer if possible. He told the Tribunal that he had had many overseas workers and found them to be very good, loyal staff.

14. In response to the Tribunal’s query, Mr Romeo said that his La Porchetta was unique in having trialled opening for breakfast. He said that he was building up this side of the business and would persevere with it.  He further stated that although La Porchetta was a franchise operation, it gave individual owners/operators considerable autonomy, especially if the operators had a lot of experience, as he did. There were some standard dishes that were offered at all La Porchetta’s restaurants, but he determined what the specials were and how many items would be gluten free and so on. Mr Romeo said that he insisted on serving really good, fresh food at his restaurant, which might not necessarily be the case at all La Porchetta outlets. Mr Romeo told the Tribunal this was a point of difference he established and he took his standards very seriously. He had 16 cameras in the restaurant and its kitchen so that he could monitor everything and described himself as very fussy. This approach required good staff to support it. He emphasised that the restaurant did not rely on frozen or pre-prepared food but made the sauces, schnitzels, meatballs and minestrone daily. Mr Romeo said that his son, who works as one of the Cooks in the business, is at university and needs to focus on his studies. He also assists with the bookkeeping.  Mr Romeo said that he himself also runs a racehorse training business with his other son. The fact that he had more than 1 business interest meant that it was essential that he had a stable workforce at the restaurant. He reiterated that he had found his overseas employees to be loyal and noted that they never missed shifts.

15. In relation to the nominee, Mr Romeo said that when he interviewed the nominee, he seemed mature. Mr Romeo told the Tribunal that to date, he had found Sikh employees to be reliable and hard working. He noted that one of the witnesses, Mr Harsimran (Harry) Singh, had worked with him since he ran Max’s restaurant in Essendon, and still worked for him at La Porchetta’s at Caroline Springs when needed. Mr Romeo said that he advertised for staff on a weekly basis, generally in local papers.

16. In relation to the operation of the restaurant, Mr Romeo said that customers ordered at the counter only if they wanted take away food.  Otherwise, customers were shown to a table by wait staff, given menus and the wait staff took orders on iPads. Customers paid after they had finished dining. Mr Romeo said that he sought feedback from customers constantly. When he was not physically there to observe, members of his family were. In response to the Tribunal’s query, he estimated that about 20 to 30% of the business came from delivery and take away but the majority was from customers dining in.  For instance, they could have up to 3 sittings on a Saturday night, which was approximately 1,000 people through the restaurant.

17. Mr Romeo said the business has a bookkeeper who comes in 1 day per week and did the pays, superannuation, tax and dealt with creditors. She was also teaching Mr Romeo’s son John how to do some of this. The restaurant employees were paid under the Restaurant Industry Award 2010, and he thought that the Cooks were paid approximately $57,000 under this Award. It was the same for all of them, except for the Head Chef. In relation to whether there was any adverse information in relation to immigration law, workplace relations or tax, Mr Romeo said that this was why he employed an external bookkeeper, to make sure these matters were all handled correctly and professionally.

18. The Tribunal then took evidence from the nominee, who gave his evidence without having heard Mr Romeo’s evidence. He told the Tribunal that he was looking for work as a Cook and saw an advertisement for a position in the applicant’s business in 2015. He applied and was offered the position. He was able to start but then the nomination and his visa were refused, and he subsequently returned to India for a period, as his wife and 5 year old daughter are there. The nominee confirmed that he and Mr Romeo still want him to return to work as a Cook for the business if the nomination and his visa are approved. The nominee said that his work involved preparing food, checking the equipment and maintaining hygiene standards. He mainly prepared fish and chicken dishes, pizzas and desserts.  He stated that he was keen to build on his skills within the business, with Mr Romeo’s training, and might some day want to set up his own business.

19. Following the hearing, the applicant’s agent provided additional material on 27 April 2018, including:

    ·a statement that the applicant’s accountant had advised that the correct market salary rate for the nominated position was $56,160 (not $57,000) under the relevant Award;

    ·copy of driver’s licence of Mr Romeo’s son, John;

    ·contract of employment between the applicant and John Romeo for the full time position of Cook, dated 27 April 2018, with salary of $56,160 plus superannuation; and

    ·contract of employment between the applicant and the nominee for the full time position of Cook, dated 27 April 2018, with salary of $56,160 plus superannuation.

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

2. 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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

   The nomination must comply with the prescribed process

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

4. 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 the nominee, Mr Kulbir Singh, the proposed applicant for a subclass 457 visa, 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 Kulbir Singh, 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).

5. The Tribunal is therefore satisfied that the requirements of r.2.72(3) are met.

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

6. 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.

7. The applicant has provided information, which is confirmed by the Department’s records, that the applicant is an approved standard business sponsor.  The approval ceases on 11 August 2021.

8. Accordingly, the Tribunal finds that the requirements of r.2.72(4) are met.

   Identification of the nominee

9. 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.

10. As noted above, the Tribunal is satisfied that the applicant identified the nominee Mr Kulbir Singh as the proposed applicant for the visa, who will work in the nominated occupation, in its nomination application.

11. Accordingly, the Tribunal finds that the requirements of r.2.72(5) are met.

    Requirements for existing subclass 457 visa holders

12. 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. In these cases:

    ·the applicant must list on the nomination each person granted a subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);

    ·the subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);

    ·the applicant must provide a written undertaking if the existing subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and

    ·if the subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant written instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).

13. As the Department’s records indicate that the nominee is not, and has not been, the holder of a subclass 457 visa, the Tribunal finds that the requirements of r.2.72(6), (7A) and (10)(g) do not apply in this case.

    Information about the nominated occupation

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

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

16. 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 written 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

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

18. The Tribunal is satisfied that the applicant is an approved standard business sponsor, its nomination included the 6 digit ANZSCO code for the nominated occupation Cook (ANZSCO code 351411) and specified that the location at which the occupation was to be carried out was Caroline Springs in the state of Victoria, postcode 3023.

19. Accordingly, the Tribunal finds that the requirements of r.2.72(8A) are met.

    No adverse information known to Immigration

20. 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.

21. Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it.

22. Accordingly, the Tribunal is satisfied that the requirements of r.2.72(9) are met.

    Specified occupation

23. 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). The Tribunal is satisfied that this is not the case here.

24. In addition, as raised with the applicant’s agent at the call over, and in the Tribunal’s subsequent s.359(2) letter, since the nomination application was lodged on 17 November 2015 and refused on 9 February 2016, exclusionary caveats have been introduced in relation to the occupations that can be approved for the purposes of r.2.72(10)(aa). These were initially introduced in written instrument IMMI 16/059, which took effect on 18 April 2017. As of 1 July 2017, IMMI 16/059 was superseded by the current instrument IMMI 17/060. Currently, notes 7 and 8 of IMMI 17/060 provides that a Cook position is excluded from being approved under r.2.72(10)(aa) if the position is located within mass production in a factory setting or in a limited service restaurant.

25. The Tribunal is satisfied that the nominated position is not located within mass production in a factory setting. The issue for the Tribunal now, following the introduction of IMMI 17/060 on 1 July 2017, is whether the applicant’s business is a limited service restaurant: if so, its nomination of Mr Singh as a Cook cannot be approved for the purposes of r.2.72(10)(aa) due to note 8 of IMMI 17/060.

26. The Departmental Procedures Advice Manual (PAM3) (as at 17 January 2018) provides the following advice about what constitutes a ‘limited service restaurant’ in section 4.8.1.3 ‘Occupation Specific Caveats’:

    …

    Cooks (ANZSCO 351411) – Conditions 7 & 8

    A caveat is in place for this occupation which excludes positions involved in mass production in a factory setting and positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, the following:

    • fast food or takeaway food services;
    • fast casual restaurants;
    • drinking establishments that offer only a limited food service;
    • limited service cafes;
    • limited service pizza restaurants.

    For further advice regarding how the above terms are defined, refer to Section 4.8.1.4 Additional advice on hospitality positions and caveats.

    This caveat is designed to ensure that in the context of this occupation, employer sponsored skilled visa programs continue to be used for skill level 3 cook positions only – that is, positions in a dining establishment that involve preparing, seasoning and cooking food.

    It is not appropriate for use by individuals who will actually be undertaking the role of a Fast Food Cooks (ANZSCO 851111), Food Trades Assistants NEC (ANZSCO 851299) and Kitchenhands (ANZSCO 851311), or for positions that can be performed with on-the-job training, or without the skills, qualifications or employment background specified in the ANZSCO dictionary.

    Cooks, unlike Chefs, are less likely to operate independently in planning menus and sourcing produce, and are expected to spend the majority of their time preparing food on a daily basis.

    If the nominated position is not determined to be in a limited service restaurant or be involved in mass production in a factory setting, further assessment may be warranted if the officer has concerns that a significant amount of the nominee’s time will be spent on routine support tasks in a food service environment (e.g. preparing ingredients, cleaning equipment, delivering food, taking orders, packing food and beverage trays, heating food items), rather than preparing and cooking food in a dining or catering establishment.

    …

    4.8.1.4. Additional advice on hospitality positions and caveats

    There are caveats in place for the occupations of Café or Restaurant Manager, Cook and Chef, which exclude the occupation from the subclass 457 programs where the position is based in a limited service restaurant.

    A limited service restaurant, as outlined in the instrument, includes, but is not limited to, the following:

    ·             fast food or takeaway food services;

    ·             fast casual restaurants;

    ·             drinking establishments that offer only a limited food service;

    ·             limited service cafes including, but not limited to, coffee shops or mall cafes;

    ·             limited service pizza restaurants.

    Cook and chef positions are also excluded where they are involved in mass production in a factory setting.
    
    This section explains how the above terms are defined under policy for the purposes of these caveats.

    Definitions

    What is a fast food or takeaway service?

    Under policy, fast food or take away food is defined as food that is quick to cook or is already cooked and as a result can be served as a quick meal or to be taken away – i.e. “a meal to go”.
    
    Such food is to be distinguished from a restaurant or café where people sit and eat meals that are cooked and served on the premises, pay on completion of the meal and with the service provided being an important factor, as well as the food.
    
    Examples of eating establishments considered under policy to provide fast food or takeaway services may include, but are not limited to, fast food chains, fish and chips shops, hamburger shops, kebab shops, takeaway sushi shops, Asian noodle take away shops and fried chicken shops.
    
    Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.

    What is a fast casual restaurant?

    Fast casual restaurants, sometimes also referred to as fast casual dining outlets, are similar to fast food outlets except the quality of the food and prices of the menu are somewhat higher and they may have a liquor licence.
    
    These restaurants are designed to offer the quality of established restaurants with the informality of fast food stores and speedier service than a full service restaurant. Typically, these outlets:

    ·             do not provide full table service, with customers ordering their food at a counter even if it is delivered to the table;

    ·             operate in chains or as franchises and are heavily advertised;

    ·             offer streamlined menus similar to fast food establishments;

    ·             offer speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;

    ·             do not generally employ chefs – with some menu items still mass-produced, even if they are made from better quality and fresh ingredients,

    ·             cater for special dietary needs unlike fast food establishments; and

    ·             do not have a drive through facility.

    Examples of eating establishments that are considered to be fast casual restaurants may include, but are not limited to fast casual dining franchises which focus on serving a ‘gourmet’ or ‘organic’ version of fast food (e.g. burgers, fried chicken, fish and chips, sandwiches) or food from a particular country (e.g. Mexican, Greek, Italian or Japanese).
    
    Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants

    Drinking establishments that offer only a limited food service

    Nominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a drinking establishment, such as a pub, a bar, a beer hall or an izakaya.

    In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant – with some pubs even marketing themselves as ‘gastropubs’.
    Employer sponsored skilled visa programs are not considered appropriate to fill positions in bars/pubs where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.

    Under policy, a drinking establishment is considered to have a limited food service menu where it only provides snacks (e.g. olives, dips, chips, pickles), or a very limited range of food that involves limited preparation (e.g. toasties, tacos, simple pizza or standard hamburgers).

    Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.

    Limited service cafes including a coffee shop or mall cafe

    Nominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a café. In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve (e.g. coffee, tea, non-alcoholic drinks). In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.

    Employer sponsored skilled visa programs are not considered appropriate to fill positions in cafes where only a limited food service is provided, such as coffee shops or mall cafes – with such positions generally lesser skilled and considered able to be sourced from the local labour market.

    Under policy, factors adding weight to a finding that an eating establishment is a limited service café include that the café:

    ·             is located in a mall;

    ·             is primarily a coffee shop (that is, an establishment that focuses on serving hot beverages such as tea or coffee) ;

    ·             have a limited food menu that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).

    By contrast, full service cafes are likely to have a comprehensive food menu and develop most dishes from scratch in a full commercial kitchen.

    Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurant below.

    Limited service pizza restaurant

    Nominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a pizza restaurant. In some cases, these establishments will provide mainly a takeway pizza service with limited other menu items and/or only limited table services. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.

    Employer sponsored skilled visa programmes are not considered appropriate to fill positions in pizza restaurants where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.

    Under policy, factors adding weight to a finding that an eating establishment is a limited service pizza restaurant include that the restaurant:

    ·             does not serve non-pizza related items;

    ·             has minimal onsite seating, with takeway the main focus of the business;

    ·             clients pay at the counter;

    ·             clients eat pizza from pizza boxes even if on the premises.

    By contrast, full service pizza restaurants are likely to have a comprehensive food menu and develop most dishes from scratch in a full commercial kitchen.

    Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants.

    …

    Distinguishing between full service and limited service cafés/restaurants

    The sections below are designed to assist officers to determine whether the nominee will be based in a restaurant or café, or in one of the locations that is specifically excluded via a caveat on the occupation listed in the relevant legislative instrument.
    
    Officers will need to make an assessment as to the location of the nominated position, based on the individual circumstances of the case and taking into account all the material available in relation to how the business actually operates. The factors outlined below are considered critical in terms of distinguishing between full service and limited service café/restaurants.
    
    Note:

    ·             The key factors are the way in which the food is ordered, served and consumed, not the quality of the food.

    ·             If a food service business operates through a chain or franchise arrangement, it is possible that some outlets will be fast food or takeaway businesses while others are cafes or restaurants. It is therefore important for officers to assess this issue on a case by case basis. In this situation, officers also need to ensure that any supporting evidence provided, relates to the specific outlet that is the subject of the nomination, rather than another premises in the chain.

    Factors supporting classification as a restaurant or café

    Under policy, factors that may be relevant to an assessment that the position is based in a café or restaurant include:

    ·             how the business is marketed to the public

    ·             the business is mainly engaged in providing food and beverage serving services for consumption on the premises, even if take away services are available

    ·             meals are made on-site from raw ingredients, portion size may vary depending on the cut/produce size available, involving substantial preparation (for example, peeling, chopping, de-boning, grating), seasoning and cooking - using a range of equipment and techniques depending on the nature and size of the produce that is being prepared

    ·             a comprehensive menu is available which incorporates a broader range of ingredients that are delivered fresh to the premises

    ·             table service is provided by a waiter/waitress – that is customers are seated at restaurant/café tables and provided with assistance while seated as required (i.e. provided with menus, asked for order, provided with additional items/assistance where required and provided with bill) 

    ·             customers pay after eating

    ·             the business holds a liquor licence and has a comprehensive selection of alcoholic beverages available via table service

    ·             the menu caters for special dietary requirements and varies from time to time depending on availability of produce, and seasoning

    ·             if the menu is limited, there is a focus on organic or specialty ingredients that are prepared onsite or ‘gourmet products’, and/or prices are higher than would be expected at a takeaway establishment

    ·             the size of portions may also vary from time to time given the human element involved in the preparation and cooking of the items

    ·             the business has a full commercial kitchen and significant food storage facilities for fresh ingredients

    ·             the business has had their performance recognised via restaurant industry awards

    ·             employment at the business has been accepted by TRA as skilled work experience, or by a recognised training institution as sufficient to support study in a Certificate III in Commercial Cookery

    ·             where a chain, different outlets are designed differently to reflect the local customer base and outlets are largely owned by the company rather than franchisees.

    Factors supporting classification not as a restaurant or café

    Under policy, factors that may be relevant to an assessment that the position is not a restaurant or café (i.e. that it is based in a fast food or take away service, or a fast casual restaurant) include that:

    ·             the business does not offer full table service

    ·             the business is a well-known fast food or fast causal restaurant chain

    ·             the business markets itself as a fast food restaurant or a fast casual restaurant, within significant levels of advertising

    ·             the business is primarily a coffee shop

    ·             operate a franchise or restaurant chain, where different outlets are largely identical in design

    ·             the business offers speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;

    ·             the business mainly engages in providing food services ready to be taken away for immediate consumption with only limited onsite seating provided (if any)

    ·             the business offers streamlined or limited menus, with food prepared according to a standardised format or that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).

    ·             the business does not generally employ chefs – with food still mass-produced even  if better quality and fresh ingredients are used than is typical in a fast food context , with special dietary needs often catered for

    ·             the business does not have a full commercial kitchen – and only has equipment for heating/final preparation of food

    ·             the business is located in a food hall and food courts that consists of fast food and take away services, as opposed to award winning/high profile restaurants that can now be co-located in some shopping malls

    ·             customers are required to order at a counter and pay before eating

    ·             limited seating and/or only communal tables shared with other business is provided

    ·             meals are served in packaged form and/or there is a focus on ‘street food’ (i.e. handheld foods)

    ·             meals are served in disposable containers (although some outlets may provide cutlery and crockery for customers dining in the establishment)

    ·             reservations are not required or provided for

    ·             food is distributed from a central location

    ·             food is apportioned into predetermined quantities and sizes, seasoned to a fixed standard and delivered, pre-packaged, with preparation on-site being limited to thawing, heating and/or basic cooking (e.g. frying or grilling)

    ·             if heating or cooking is required, cooking times for the items are usually pre-arranged for a set duration, as the time it takes to cook through can be predetermined given the control over portion size that is packaged prior to delivery to each venue

    ·             employees of the business are covered by the Fast Food Industry Award

    ·             the business has had their performance recognised via fast food industry awards.

    Officers are reminded that the above considerations are for guidance only and are not intended to be an exhaustive list. Officers must consider, on an individual basis, all circumstances of which they are aware, or should be aware, and which are relevant to the determination, and must not apply these factors inflexibly.

    …

1. In the ordinary case, policy is a relevant factor for the Tribunal to take into account.[1]  Whether the Tribunal should apply that policy or interpretative guidelines in a particular case will depend on a range of factors, including whether it is exercising a discretionary or non-discretionary power and whether the nature of the power suggests an emphasis on consistency or a focus on the circumstances of the individual case. 

   [1] See, e.g., Hneidi v MIAC [2009] FCA 983 (Besanko J, 2 September 2009), at [37].

2. However, the Tribunal must not determine an issue simply by resolving whether or not it conforms to policy. The Tribunal is not entitled “to abdicate its function of determining a correct or preferable decision in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be”.[2] The application of policy assumes that, in the absence of any reason to the contrary, its standards and values are an appropriate guide in the particular case.[3]  But where the policy is more narrow or restrictive than the legislation, it will not be a lawful policy and reliance on it would be likely to constitute a jurisdictional error.[4] 

   [2] Drake v MIEA (1979) 24 ALR 577 per Bowen CJ and Deane J at 590.

   [3] Re Drake and MIEA (No 2 ) (1979) 2 ALD 634 at 642.

   [4] Lobo v MIMIA [2003] FCAFC 168 (French, Sackville and Hely JJ, 8 August 2003) at [63] - [64].

3. The Tribunal is satisfied that the applicant’s business is not a fast food or takeaway service: although the Tribunal acknowledges that it offers take-away food for customers, it is satisfied that it is predominantly a dine-in facility with seating for approximately 308 customers. The Tribunal is further satisfied that it is not a predominantly a drinking establishment that offers only a limited food service, and that it is not a limited service café such as a coffee shop or mall café.

4. The issue for the Tribunal is therefore whether the applicant’s business is a fast casual restaurant and/or or a limited service pizza restaurant.

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

   ·the applicant operates a La Porchetta restaurant in Caroline Springs, a suburb of Melbourne, that has a seating capacity for approximately 308 diners, operating from 11am to 9.30 or 10 pm, 7 days a week;

   ·it is part of a franchise;

   ·it is fully licensed to serve alcohol;

   ·the business currently employs a Head Chef, a Head Pizza Chef, an Assistant Head Chef, 3 Cooks,  1 Kitchenhand, 1 Floor/Bar Manager, 1 Manager, and 10 Wait Staff. There are a number of vacancies, including the nominated position of Cook, and ones for a Pizza Cook, Sous Chef, Kitchenhand and 2 Wait Staff. Staff are employed by Mr Romeo, the franchisee and overall manager, and director of the applicant company;

   ·diners may order food to pick up or have delivered, or may dine in. Diners dining in are greeted by wait staff and shown to a table and provided with a menu. Diners then place an order for food and/or drinks at their table and are brought their food and/or drinks by wait staff.  Crockery/dining utensils, cutlery, glassware and napkins are provided;

   ·the menu consists largely of Italian cuisine (pizzas and various pasta dishes), together with other main dishes, various salads, side dishes, entrees and desserts. There are vegan and vegetarian menu items.  The business caters for dietary needs such as gluten intolerance. The La Porchetta website indicates that certain dishes will be available at all La Porchetta restaurants within the Melbourne metropolitan area;

   ·all food is prepared from scratch on site in a commercial-grade kitchen; and

   ·the business takes table bookings and has a function room.

6. The Tribunal has had regard to the Departmental policy set out above, and considers that, in relation to the applicant’s business, there are both factors that weigh in favour of the applicant’s business being classified as a fast casual restaurant, and also factors that weigh against it.

7. Factors that suggest that the applicant’s business falls within the category of a ‘fast casual restaurant’ include the fact that:

   ·it offers takeaway food;

   ·it is part of a franchise; and

   ·it has a somewhat limited menu focusing on pizzas and pasta dishes with various side dishes and desserts.

8. On the other hand, the factors that suggest that the applicant’s business should be distinguished from a ‘fast casual restaurant’ include the following:

   ·it is predominantly a dine-in venue with seating for over 300;

   ·it has a liquor licence;

   ·it is open from late morning to late evening, 7 days per week and has begun opening for breakfast;

   ·the food is made from scratch on the premises by Cooks in a commercial grade kitchen with fresh ingredients, utilising a variety of preparatory and cooking techniques;

   ·food is served on crockery, with glassware and cutlery provided for diners; and

   ·wait staff greet customers upon entry, provide menus, take orders, bring food out, and customers pay after dining.

9. In terms of how it advertises itself, the La Porchetta home website states that ‘Every La Porchetta restaurant uses only the freshest and best ingredients to make our famous pizza and pasta, as well as our great range of meat, poultry, and seafood dishes through to our mouthwatering desserts… Just as the kitchen is the centre of Italian family life, our restaurants celebrate that feeling of being at home with delicious food made from fresh ingredients, warm service, great value and a family heart’: >

   In the Tribunal’s view, the factors in this case are fairly closely weighted. However, on balance, the Tribunal ultimately considers that it is not appropriate to classify the applicant’s business as a fast casual restaurant, even though it is a part of a franchise.  This is because it is nevertheless a business operating the kinds of hours a restaurant would be expected to operate, largely provides dining in for patrons (but with some take away and delivery services), is licensed, and – although the focus is largely on pizza and pasta – its food is not confined to these menu items and is predominantly made onsite, from fresh, high quality ingredients, by Cooks in a commercial grade kitchen. Customers’ orders are taken at the table and the business employs wait staff who greet customers, provide them with menus and advice, and bring them their food, which is served on crockery with cutlery and glassware. The Tribunal is satisfied that the wait staff provide a level of service that is greater than that provided in a fast food or takeaway outlet. Taken cumulatively, these factors lead the Tribunal to conclude that the applicant’s business should not be characterised as a fast casual restaurant, or as a limited service restaurant (as that term is explained in PAM3) and thus to conclude that its nomination is not excluded by note 8 of IMMI 17/060.

10. The Tribunal is satisfied, having compared the position description provided to the Department by the applicant with the ANZSCO occupational description for a Cook, that the duties of the nominated occupation correspond to those of the occupation of Cook (ANZSCO code 351411). (A more extensive comparison is set out below in the Tribunal’s discussion of r.2.72(10)(f)).

11. Accordingly, the Tribunal is satisfied that the requirements of r.2.72(10)(aa) are met.

    Terms and conditions of employment

12. 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.

13. 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.

14. 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).

15. 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 (currently $250,000): r.2.72(10)(AB).

16. Based on the evidence before it, the Tribunal finds that the nominee’s current annual earnings consist of his base salary of $56,160 plus 9.5% superannuation as per the letter of employment provided to the Department with the nomination application dated 27 April 2018. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied 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.

17. The Tribunal is satisfied from the documentary evidence provided by Mr Romeo and the applicant’s agent on behalf of the applicant that there is at least 1 Australian citizen or permanent resident performing equivalent work at the same location (that being John, Mr Romeo’s son). The Tribunal is further satisfied that this employee and the nominee are being paid the same salary and the terms and conditions of their employment are the same, based on their most recent employment contracts, each dated 27 April 2018.

18. The Tribunal is further satisfied that the contract of employment provided to the Tribunal for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).

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

20. The Tribunal finds that the requirements of r.2.72(10)(c) are met.

    Base rate of pay

21. Regulation 2.72(10)(cc) requires 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 be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 (currently $53,900).

22. 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.

23. 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).

24. The Tribunal is satisfied from the evidence provided that the nominee’s annual earnings are $56,160 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc), unless the Tribunal is satisfied that the annual earnings of an equivalent Australian employee to the nominee would exceed the TSMIT and it is reasonable to disregard r.2.72(10)(cc).

25. As noted above, an equivalent Australian employee (John Romeo) is being paid the same salary, with the same terms and conditions, as the nominee. As John’s salary of $56,160 exceeds the TSMIT, the Tribunal finds that r.2.72(10)(cc) is met.

    Certification under r.2.72(10)(e)

26. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060;

    ·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant written instrument;

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 17/060.

27. From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters.

28. Accordingly, it is satisfied that the requirements of r.2.72(10)(e) are met.

    Position must be genuine

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

30. As noted above, from the evidence provided by the applicant to the Department and Tribunal, the Tribunal is satisfied that the applicant operates a franchise La Porchetta restaurant based in outer suburban Melbourne which presently employs approximately 22  people (not including the nominee) in addition to the director and manager, Mr Romeo. Of these 22 employees, there are 3 existing Cook/Pizza Cooks, a Head Chef, an Assistant Head Chef, a Head Pizza Chef, 1 Kitchen Hand, and 11 Wait Staff, as well as the nominated position of Cook (currently vacant, along with vacancies for 2 wait staff positions, a kitchen hand, a Pizza Cook and Sous Chef) according to the most recent organisational chart provided in April 2018.

31. The Tribunal has had regard to the ANZSCO occupational description for a Cook, as set out below:

    UNIT GROUP 3514 COOKS

    
    COOKS prepare, season and cook food in dining and catering establishments.

    Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    oexamining foodstuffs to ensure quality

    oregulating temperatures of ovens, grills and other cooking equipment

    opreparing and cooking food

    oseasoning food during cooking

    oportioning food, placing it on plates, and adding gravies, sauces and garnishes

    ostoring food in temperature controlled facilities

    opreparing food to meet special dietary requirements

    omay plan menus and estimate food requirements

    omay train other kitchen staff and apprentices

    
    Occupation:

    351411 Cook

    
    351411 COOK

    
    Prepares, seasons and cooks food in a dining or catering establishment.

    Skill Level: 3

    …

32. As noted above, the delegate was not satisfied that, given the size of the applicant’s business and the number of Cooks and Chefs already working within it, that the business had a genuine need for another Cook.

33. At the hearing, Mr Romeo disagreed with the delegate’s conclusions that the scope and scale of his business did not require another Cook. Having had the benefit of additional documents and information, and an opportunity to speak with Mr Romeo in detail at the hearing, the Tribunal has formed the view that the nominated position does and would carry out the majority of the ANZSCO duties listed for a Cook.

34. In particular, the Tribunal gives weight to Mr Romeo’s oral evidence and the organisational chart and seating capacity and menu of the restaurant, which indicate that it provides an extensive range of dishes, with the Pizza section having its own Head Chef and Cook(s) while the remainder of the dishes are prepared by the Head Chef and a team of Cooks.

35. The profit and loss statement for the 2016/17 financial year provided to the Tribunal indicates that the business made a gross profit of approximately $1,461, but a loss of $96,401, in that financial year, with wages expenses of approximately $541,371. While there was an overall loss made, this is considerably less than the previous loss for 2015/16 ($348,999). As noted by Mr Romeo, he established the restaurant in mid-2013 and expected it to take 2 to 5 years to reach profitability. While still operating at a loss, the financial statements for 2015/16 and 2016/17 indicate that the gross profits are increasing steadily and that it is meeting its wage payment obligations (also evidenced by BAS lodged for 1 July 2017 onwards). 

36. Accordingly, the Tribunal is satisfied that the applicant has a genuine need for the nominated position, and that the nominated position will genuinely carry out the majority of tasks set out in ANZSCO for a Cook.

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

    Employment under contract

38. 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.

39. The Tribunal is satisfied that the applicant provided a contract of employment dated 14 August 2015 for the nominee to the Department indicating that the nominee’s salary was $54,000 plus superannuation. This has been updated: as at 27 April 2018, the nominee’s salary is $56,136 plus superannuation.

40. Accordingly, the Tribunal finds that the requirements of r.2.72(10)(h) are met.

    Work agreements

41. 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 applicant, these must have been met.

42. 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

43. 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.

2. 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.

3. The Tribunal is satisfied that the applicant is not exempt from having to provide evidence of labour market testing, and has reviewed what was provided to the Department with the nomination in November 2015. This indicates that the nominated position was advertised on Network Classifieds/Brimbank & North West Star Weekly from 29 September 2015 to 13 October 2015.  There is no evidence that there were any redundancies or retrenchments during or prior to this period.

4. Accordingly, the Tribunal is satisfied that the labour market testing requirements in s.140GBA are met.

   Conclusion

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

   DECISION

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

   Alison Mercer
   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)a standard business sponsor; or

   (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.

   (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 that:

   (i)       are provided; or

   (ii)      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.