JZ BUSINESS ENTERPRISES PTY LTD (Migration)

[2018] AATA 5691

JZ BUSINESS ENTERPRISES PTY LTD (Migration) [2018] AATA 5691 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JZ BUSINESS ENTERPRISES PTY LTD

CASE NUMBER:  1622374

HOME AFFAIRS REFERENCE(S):           BCC2016/2825051

MEMBER:Warren Stooke AM

DATE:2 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 02 November 2018 at 2:34pm

CATCHWORDS
MIGRATION – nomination – activities of sponsoring business does not appear to encompass duties of nominated occupation – Cook – genuine need for position – meaning of ‘catering establishment’ – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140, 245AR(1)
Migration Regulations 1994, rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 December 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 25 August 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy subregulation 2.72(10)(f) because the activities of the sponsoring business do not appear to encompass the duties of the nominated occupation.

4. The applicant appeared before the Tribunal on 27 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms Kaur. 

5. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 8 December 2016 and that she understood the content of the decision. The applicant stated that the delegate’s review of the position challenged why Ms Kaur was with us.

6. The applicant also stated that she did not believe the delegate had lawful grounds to refuse the grant of a visa as the applicant thought the right grounds were provided in the application.

7. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

8. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

2. The applicant provided evidence that the business had been established 18 years ago with the preparation of Middle Eastern products, including mud-cakes, muesli and cookies. The business manufactories food products for a range of clients for niche markets.

3. The applicant explained that the precision in the preparation of the food products is critical and a mistake could result in the loss of a client. In this regard, the applicant believed that the skill of the cook was paramount.

4. The applicant advised the Tribunal that products produced in the establishment were supplied to Virgin Airlines; BP (nine lines of consumable bars) and Coles Supermarkets. The business is also launching into the production of baby products with premium ingredients, including the production of DH2 baby formulas. As such, the business is not engaged in retail but is focussed on catering van supplies to stores and high end value clients to serve to their customers. These products are presented in various states, including semi-cooked, for final preparation and consumption, by the client’s customers.

5. The applicant gave evidence that the cook must precisely control the mix of quantities to ensure the quality of the output. As such, it was explained that the cooking process is the most critical and that it is not just a machine based process, particularly given that a mix error can result in significant loss.

6. The applicant gave evidence that the business is located in Coburg and has both cooking and warehousing facilities and engages 8 permanent employees and up to 30 casuals. The applicable award is the Food, Beverage and Tobacco Manufacturing Award 2010, which covers classifications including personnel engaged as cooks in the preparation process for supply to the catering and food service industry.

7. The applicant stated that her husband manages the process and production machines used in the cooking process against the preparation activities performed by the cook in preparing the ingredients and specifications related to the product mix prior to cooking.

8. The applicant provided evidence that the duties of the nominee include the following:

   a.Sourcing of the relevant ingredients, specific to the designated order for the product to be cooked;

   b.Control of the cooking process from the mix of ingredients to the control of the cooking process through temperature settings and baking times;

   c.Ensures that the process through close monitoring maintains the appropriate texture relevant to the consistency and product quality before the mix is inserted into the cooking machine;

   d.Maintains records to ensure compliance with HAZARD in the event of product recalls or like issues;

9. Further, the applicant attested that the nominee’s position covers the full scope of duties provided in ANZSCO  3514 Cooks, as provided hereunder, with the exception of placing foods on plates, however the prepared foods are paced in suitable serving containers for use by the end user of the business’s clients:

   “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)

   
   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 - Prepares, seasons and cooks food in a dining or catering establishment.  Skill Level: 3

10. The applicant provided evidence that the nominee is paid $53,950 p.a. and is employed full-time in the business under the terms of a formal contract [DIBP Folio 17-21] and a formal letter of engagement [Tribunal Folio -31].

    Market Testing

11. The applicant gave evidence that the nominee was referred to the business after a lack of success through agencies and online, including Seek and Gumtree. In this regard, the applicant had experienced poor success with casuals who were generally unreliable and would not commit to the hours. The skill required for the position was regarded as paramount and few candidates met that standard.

12. The applicant provided evidence that she and her husband, with the expansion of the business work 18 hours per day and it was essential to have a reliable trained cook in the position. Additionally, it was stated that the business is seeking more workers and they are difficult to obtain and at the time of the hearing the business was having difficulty in recruiting an office clerk. As such, the loss of the nominee in her role as cook for the business would be devastating.

13. The applicant provided the Tribunal with the accounts prepared by the business’s accountant, which were also certified. In this regard the business had a total income of $2.513m with a gross profit of $930,228 in the financial year 2018 and a total income of $1.077m with a gross profit of 238,259 in 2017, which demonstrates to the Tribunal the significant expansion of the business and the genuine need for the business to employ a competent cook. Further, the retained earnings for 2018 were $254,596.39.

    Position must be genuine

14. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

15. The Tribunal finds that the position of cook within the business is genuine. In this regard, the Tribunal accepts that the position of cook involves the application all of the skills and functions described in ANZSCO 3514 pertaining to the designated position of cook, with the exception of “portioning food, placing it on plates, and adding gravies, sauces and garnishes”. However, the Tribunal views the cooking function, in this case, to involve the composite set of skills of a cook are applied and that once the product is produced, including a semi cooked state, it is then provided through the catering process to the end consumer, which may include “portioning food, placing it on plates, and adding gravies, sauces and garnishes”, as part of the one step removed execution of the process.

16. The Tribunal is satisfied that off-premise catering often involves producing food at a central kitchen, with delivery to and service provided at the client’s location. As such, part of the preparation of food may be executed or finished at the location of the client. This does not detract from the integrity of the initial cooking process and compliance with the ANZSCO 351411 descriptor for the position of “cook”.

17. Further, the Tribunal has considered the meaning of ‘catering establishment’ and is satisfied that the transition of cooked food products, through the van delivery process to the end use facility, constitutes in the broader sense “catering establishment” given modern technology and the varied ways in which food can be supplied to the consumer. In this regard, the Tribunal is satisfied that the process described should not be construed as within the ‘fast food’ industry, but is more akin to the service of cooked food direct to the consumer.

18. For these reasons the requirements of r.2.72(10)(f) are met.

19. For the reasons given above, the Tribunal is satisfied that the applicant meets the applicable criteria for the nomination to be approved.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Warren Stooke AM
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination — Subclass 457…

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

(a)is any of the following:

(i) a standard business sponsor;

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

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

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

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

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

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

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

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

(a)a standard business sponsor; or

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

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

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

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

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

(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

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

(a)if:

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

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

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

(b)if:

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

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

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

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

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

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

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

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

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

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

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

(b)if:

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

(ii)      the person is a standard business sponsor;

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

(c)if:

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

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

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

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

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

(9)The Minister is satisfied that either:

(a)there is no adverse information known to Immigration about the person or a person associated with the person; or

(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

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

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

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

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

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

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

(i)       are provided; or

(ii)      would be provided;

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

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

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

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

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

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

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

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

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

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

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

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

(A)for the occupation in the ASCO; or

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

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

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

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

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

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

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

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

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

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

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

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

(A)for the occupation in the ANZSCO; or

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

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

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

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

(ii)      if:

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

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

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

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

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

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

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

(h)either:

(i)       the person will:

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

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

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

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

(a)the terms and conditions of employment; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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