Jane's Hospitality Nelson Bay Pty Ltd (Migration)
[2022] AATA 241
•25 January 2022
Jane's Hospitality Nelson Bay Pty Ltd (Migration) [2022] AATA 241 (25 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Jane's Hospitality Nelson Bay Pty Ltd
REPRESENTATIVE: Mr Sung Joon Kim (MARN: 0317399)
CASE NUMBER: 2109796
HOME AFFAIRS REFERENCE(S): BCC2020/1799977
MEMBER:Stephen Witts
DATE:25 January 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 25 January 2022 at 3:41pm
CATCHWORDS
MIGRATION – application for approval of nomination of occupation – medium-term stream – genuine position – chef – tasks of position more aligned to lower-level fast food or takeaway cook – limited evidence of higher-level tasks – nominee’s qualifications and experience – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10), 2.73CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 July 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 25 June 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the medium-term temporary skill shortage category.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72(8) because the delegate was not satisfied that the nominated position of chef ANZSCO code 351411 was a genuine nominated position.
The applicant, Ms Jane Kim, appeared before the Tribunal on 25 January 2021 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee Mr Seungtae Kim.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
According to the delegate’s decision record provided to the Tribunal by the applicant, it made an assessment that some of the duties to be performed by the nominee may appear to be consistent with the nominated occupation however it was not satisfied that in the context of the applicant’s business, the majority of the tasks that the nominee is actually going to perform align with the tasks of the nominated occupation of chef. It was noted by the delegate that the business was a sushi train restaurant which was a fast food or takeaway food service, or a fast casual restaurant, and therefore the tasks to be performed by the nominee only cover low skill tasks due to the nature of the business.
The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
In particular that Tribunal notes that a submission was provided to it dated 10 January 2022 by the director of the business, Ms Jane Kim, stating that the nominee Mr Seungtae Kim, has plenty of relevant work experience and qualifications in Australia and that he has been working in Australia and performing his duties as a chef. It was stated that he is responsible for the preparation of high-quality food in a timely and consistent manner and that he must choose ingredients, oversee the kitchen, organise cooking, and determine how much food to order. It was stated that the nominee had to prepare food items as directed, follow recipes, restock items, use and maintain all equipment appropriately in the kitchen and employ food safety best practice.
It was stated that the nominee is involved in preparing some food including boiling water in a pot adding the soy paste for miso soup, heating oil in a frypan and frying frozen products, rolling different ingredients in a Japanese seaweed product on a bamboo mat, making sushi rice ensuring the right balance for sticky rice, peeling and mincing garlic and ginger and mixing it with flour and covering marinated chicken, mixing tofu ingredients, mixing soy sauce and ginger and garlic to create teriyaki beef, mixing materials to create tempura powder, and other such food preparation activities.
The Tribunal notes also provided were company extracts and relevant ASIC documentation indicating that the business’s ACN number is 165914616. Also included were some financial statements for the sushi train business indicating that to June 2019 the company had a total trading income of approximately AU$1.4 million and a profit before income tax of approximately AU$60,000. Also included were some financial statements for the year ending 30 June 2020 stating that the company had total sales of approximately AU$1.5 million and a profit of approximately AU$64,000.
The Tribunal notes the director also owns two other businesses, other food preparation businesses in different locations with different ACN numbers.
The Tribunal notes that included was information regarding employees at the Sushi train business included a restaurant manager who is a full-time employee on a bridging visa, 4 chefs including the nominee all on temporary visas, 2 cooks both on permanent visas, 2 kitchen hands on temporary visas, and 5 waitress staff one on a temporary visa and 4 Australian citizens.
The Tribunal further notes that also included was material regarding the nominee’s employment indicating that he is on a full-time annual salary of AU$60,000 plus superannuation. It was stated in this material that the nominee will commence employment after his 482-visa approval. This material was dated 19 June 2020.
The Tribunal also notes that included was an example of a seek advertisement dated 15 June 2020 for a chef, material from a pay scale summary indicating an average sous chef salary in Australia is currently AU$59,149, dated 15 June 2020, and a position description reflecting the above material provided in the submission.
At the hearing the Tribunal had a discussion with the nominator and the nominee regarding the application.
The nominator, Ms Jane Kim, stated that her restaurant was not solely a fast food or takeaway business and that the nominee, Mr Kim, is carrying out the duties of a chef including ordering food, preparing fish, training newly appointed cooks, checking stock, managing the menu, and speaking to clients and taking feedback. She stated that he can cook all the Japanese menu and that the main reason she employed him was that he previously worked in a sushi train type restaurant.
The nominee stated that he has qualifications at certificate and diploma level in cookery gained at TAFE and that he first arrived in Australia in 2012 on a working holiday visa, he also received a second holiday visa, and then a student visa, and was on a 457 visa for three years up until July 2020. He stated that he is currently earning AU$72,703 inclusive of super and that he has experience as a chef, that he can combine Japanese with a pub style menu where he once worked, that he can design new menus and when asked by the Tribunal as to what other foods he does actually prepare at the sushi train restaurant other than as stated above he stated that he can cure salmon in a non-traditional non-Japanese manner suitable for Western palates.
The Tribunal has considered the evidence given above and has reviewed the tasks included in ANZSCO code 351411 noting that chefs are deemed to plan and organise the preparation and cooking of food in dining and catering establishments, and that cooks, fast food cooks and kitchen hands are excluded from this group. It is also noted by the Tribunal that chefs carry out a range of activities associated with preparing and cooking food and monitoring the quality of dishes at all stages of preparation and presentation and demonstrating techniques and advising on cooking procedures as well as preparing and cooking food.
The Tribunal has considered the evidence provided by the nominator and the nominee very carefully and is concerned that the nominee, although engaged in some low-level food preparation, such as outlined above including such low-level tasks as boiling water to prepare soups, and rice, that the nominee is not engaged in the more high-level food preparation and cooking activities associated with the cooking of food in dining and catering establishments. The Tribunal has carefully considered the statements of the applicant regarding the sushi train restaurant being a genuine restaurant but after careful consideration the Tribunal finds that the nominee, in fact, is only involved in very low-level food preparation activities associated with the preparation of food items for fast food purposes or for takeaway to a narrow set of pre-prepared Japanese-style fast food ingredients. The Tribunal also finds that insufficient evidence was provided regarding any discussion and teamwork on food preparation issues with managers, dietitians, and kitchen and wait staff particularly, as above, insofar as it relates to the demonstration of techniques and providing advice on cooking procedures.
The Tribunal has also considered the nature of the workplace and its relevance to the types of food preparation activities that the nominee would be involved in and finds that it is predominantly a fast food and takeaway facility which would circumscribe the complexity of the food preparation activities of the nominee. In particular the Tribunal notes the activities listed in the evidence provided as reviewed above noting that actually listed were activities such as boiling water and other activities that suggested that the food preparation undertaken by the nominee were genuinely speaking of very low skill level.
The Tribunal finds that on that basis the position as reviewed is not a genuine position of chef in accordance with ANZSCO code 351411.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal has considered the evidence provided very carefully and, as above, finds that the position of chef in this case is not genuine. The Tribunal acknowledges that it may be a full-time position but finds that it is also the case that the position reviewed carried out by Mr Seungtae Kim is of a low order of skill and more accurately corresponds to that of a kitchen hand. The Tribunal finds that the nominee was not carrying out the duties and responsibilities of a chef in accordance with ANZSCO code 351411.
For these reasons the requirements of reg 2.72(10) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Stephen Witts
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) …
(iv) …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)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.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one 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.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii) …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i) a short term skilled occupation; or
(ii) a medium and long term strategic skills occupation; and
(b)either:
(i) the 6-digit ANZSCO code for the occupation; or
(ii) if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i) the person who nominated the occupation;
(ii) the nominee;
(iii) the occupation;
(iv) the position in which the nominee is to work;
(v) the circumstances in which the occupation is undertaken;
(vi) the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister 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 a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii) it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii) it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i) 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 an Australian permanent resident performing equivalent work at the same location; or
(ii) it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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