La Piadina Pty Ltd (Migration)

La Piadina Pty Ltd (Migration) [2022] AATA 2198 (14 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  La Piadina Pty Ltd
REPRESENTATIVE:  Ms Ingrid Meskin (MARN: 0853578)
CASE NUMBER:  1828864
HOME AFFAIRS REFERENCE(S):          BCC2017/2542082
MEMBER:Peter Newton SC
DATE AND TIME OF
ORAL DECISION AND REASONS:         14 April 2022 and 16 May 2022 at 10:28 am (NSW time)
DATE OF WRITTEN RECORD:                10 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision that the nomination be approved.
Statement made on 10 June 2022 at 1:12pm

CATCHWORDS
MIGRATION–nomination– Café or Restaurant Manager –applicant lawfully operating a business in Australia–nomination contains the required certifications – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 September 2018 (Department’s Decision) refusing to approve a nomination under s 140GB of the Migration Act 1958 (Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (Regulations).
At the hearing on 16 May 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
The applicant applied for approval on 17 July 2017. A nomination of an occupation for a Subclass 457 visa is made under section 140GB of the Act and regulation 2.73 of the Regulations. Regulations 2.72(3) to (12) proscribe the criteria that must be satisfied for the Minister to approve the nomination by a person. In this case, La Piadina Pty Ltd nominated Vincenzo Soffredini for the position of café or restaurant manager, restaurant manager. In this decision and reasons, I will refer to La Piadina Pty Ltd as the nominating employer or applicant and I will refer to Mr Soffredini as the nominated employee.
For nomination applications made from 23 November 2013, additional criteria are specified in section 140GBA. Paragraph 2.72(10)(aa) of the Regulations requires that if the nominating employer is a standard business sponsor and the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph. The relevant legislative instrument for Subclass 457 visa applications is IMMI17\060 Specification of Occupations - Subclass 457 visa.
In the application, the nominating employer specified the nominated occupation to be café or restaurant manager - 141111. As specified in the relevant legislative instrument, the occupation café or restaurant manager 141111 is not applicable where the nominated position is in a limited-service restaurant.
A limited-service restaurant includes the following: (a) a fast food or takeaway food service; (b) a fast casual restaurant; (c) a drinking establishment that offers only a limited food service; (d) a limited-service café, including a coffee shop or mall café; (e) a limited-service pizza restaurant.
The delegate decided not to approve the nomination because the delegate found that a restriction specified in the relevant instrument applies to the nominated position. The delegate was not satisfied paragraph 2.72(10)(aa) had been met.
The applicant by its director, Mr Zizioli, appeared before the Tribunal at the hearing on 14 April 2022 and 16 May 2022. The application for review of the Department’s Decision by the nominating employer was heard concurrently with the application for review by the nominating employee against a related decision by the Department of Home Affairs refusing the nominated employee’s application for a Subclass 457 visa. Evidence on one application was evidence in the other. The nominated employee, Mr Soffredini, appeared at the hearing of each application for review.
The applicants were represented in relation to the review by Ms Meskin.
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 OF 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 sponsor and meets the requirements of regulation 2.72: section 140GB(2). The nominated employer 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 after 12 August 2018. In addition, for nominations made from 23 November 2013, section 140GBA must be met.
Regulation 2.72(3) requires that the nominating employer has made the nomination in accordance with the process set out in regulation 2.73. Regulation 2.73 provides:
·The person is nominating an occupation under section 140GB(1)(b): reg 2.73(1A)(a);
·The applicant identifies in the nomination a holder of, or an applicant, or a proposed applicant for, a Subclass 457 visa as the person who will work in the occupation: reg 2.73(1A)(b);
·The nomination was made using the approved form and fee: regs 2.73(2), (3), (5) and (9);
·The applicant has identified the nominee in the nomination: reg 2.73(4)\(4A) and reg 2.72(5);
·For applications made from 14 December 2015 - the applicant has provided the certification as to whether or not the person has engaged in conduct that constitutes a contravention of section 245(AR)(1) of the Act: reg 2.73(4B); and
·The nomination includes the locations at which the occupation will be carried out, and the name and\or six-digit ANZSCO code if the applicant is a standard business sponsor; as well as the relevant certifications mentioned in 2.72(10) or reg 2.72(11): reg 2.73(4)\(4A).
Dealing with each requirement in turn:
·The nomination for a Temporary Business Entry visa (Nomination) lodged with the Department of Home Affairs on 17 July 2017 lists Mr Soffredini as the nominee for the 457 visa. The nominated employee has not been granted a 457 visa;
·The Nomination identifies the nominated employee as the applicant or proposed applicant for a Subclass 457 visa;
·The Nomination was lodged on 17 July 2017 in the approved form. By letter from the Department to the nominating employer dated 17 July 2017 the Department acknowledged receipt of the application and payment of the nomination application fee;
·As indicated, the Nomination identifies the nominated employee, Mr Soffredini, as the nominee;
·The Nomination was lodged after 14 December 2015. The Nomination contains the certification required by section 245AR(1) of the Act;
·The Nomination includes the location at which the occupation will be carried out (Bondi Beach) and the six-digit ANZSCO code for the nominated position of café or restaurant manager - 141111. As stated, the Nomination contains the required certifications.
For these reasons, the requirements of regulation 2.72(3) are met.
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 the Minister. The nominated employer is a standard business sponsor. By letter from the Department of Home Affairs to the nominated employer dated 30 July 2021 the Department acknowledged that the notification of approval as a standard business sponsor had been approved and the sponsorship was effective until 30 July 2026. Accordingly, the requirements of Regulation 2.72(4) are met.
Regulation 2.72(5) requires that the nominating employer identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. The Nomination identifies Mr Soffredini as the proposed applicant for the 457 visa. Accordingly, the requirements in Regulation 2.72(5) are met.
The criteria for approval of a nomination contains several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. As the nominee is not the holder of a Subclass 457 visa, the requirements of regulations 2.72(6), (7A) and (10)(g) do not apply.
Regulation 2.72(8A) requires the applicant to provide, so far as is relevant, the following information as part of the nomination:
a. The name of the occupation and the corresponding six-digit ANZSCO code if there is one;
b. The location at which the nominated occupation is to be carried out.
The Nomination:
a. Nominates the position of café or restaurant manager, and the corresponding ANZSCO code of 141111;
b. Bondi as the location of which the nominated occupation is to be carried out.
Accordingly, the requirements of regulation 2.72(8A) are met.
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct in relation to the nomination, that constitutes a contravention of section 245AR(1) of the Act. The Nomination contains a certification that the nominated employer has not engaged in conduct in relation to the nomination that constitutes a contravention of sub-section 245AR of the Act. Clearly, regulation 2.72(8B) is met.
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 regulations 1.13A and 1.13B.
I have reviewed the files of the Department of Home Affairs and the Tribunal in relation to the nomination by the nominating employer and the application for a 457 visa by the nominated employee. There is no adverse information contained in those files relating to the nominating employer or a person associated with the nominating employee, who include Mr Soffredini and Mr Zizoli. There is also no adverse information relating to Mr Zizioli. The evidence before the Tribunal establishes that Mr Zizioli holds a liquor licence. The nominating employer conducts the restaurant business from Bondi. It was incorporated on 15 September 2011. Mr Zizioli is the director, secretary and shareholder of the nominating employer. Mr Zizioli has provided financial information including annual financial reports and business activity statements for the nominating employer which establish that the company is solvent and meets its liabilities as and when they fall due.
Mr Soffredini has worked for the nominating employer from 20 February 2017 and continues to be employed by the company. He is employed full time in the position of restaurant manager. Mr Soffredini has provided to the Tribunal a curriculum vitae setting out his training, study and experience. I am satisfied he is qualified to continue to work in the position of restaurant manager and he does so competently. Mr Soffredini has provided to the Tribunal a certificate from the Ministry of Justice in Italy recording no offences. He has provided a certificate from the Public Prosecutor Office in Milan recording no criminal charges. He has provided a certificate from the Australian Federal Police recording no offences. Overall, I am satisfied that there is no adverse information known to Immigration about the applicant, about the nominating employer or a person associated with the applicant, including Mr Zizioli and Mr Soffredini. For these reasons, the requirements of regulation 2.72(9) are met.
Regulation 2.72(10)(aa) as it applies to this case, requires that the nominated occupation and its six-digit code correspond to an occupation and six-digit code specified in instrument IMMI 17\060, and the occupation must be applicable to the person nominated 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: reg 2.72(10)(b).
The Nomination nominates the occupation as café\restaurant manager ANZSCO 141111 on the short-term occupation list of the legislative instrument IMMI 17\060 pursuant to regulation 2.72(10)(aa). The nominating employer is the sponsor who holds a standard business sponsorship approval status. The nominating employee will be employed by the nominating employer to work in its business. For these reasons, the requirements of regulation 2.72(10)(aa) are met. As the nominating employer holds a standard business sponsorship approval, I am satisfied that the requirements for the nomination to be supported by a specified organisation and the requirements of regulation 2.72(10)(b) are met.
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 in 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 (Cth).
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 substantive contrary evidence that the first set is not less favourable than the other set: reg 2.57(3A). “Earnings” is defined in reg 2.57A and includes the persons 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.
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 the legislative instrument.
The evidence before the Tribunal includes the employment agreement between the nominated employer and the nominated employee dated 10 July 2017 which provides that the nominated employee’s remuneration is a total of $60,225 gross per annum comprising a base salary of $55,000 per annum and superannuation of $5,525 per annum. By email from Ms Meskin to the Tribunal sent 27 September 2021 the nominated employer provided evidence that the salary of the nominated employee is a market related salary. The email states: “The sponsor does not employ any Australians in an equivalent position and as such, we have referred to external evidence to ascertain the market rate salary. Attached please find several recent advertisements for restaurant managers in Sydney being offered the salaries in a similar range to the salary offered to the nominee”. The attachments are advertisements for the position of restaurant manager published by seek.com which record the salary of a restaurant manager full time ranging from $45,000 to $80,000 per annum.
I have also had regard to the Temporary Skilled Migration Income Threshold (TSMIT) for the nominated position which is currently AUD $53,900. Accordingly, I am satisfied the nominee’s earnings are no less favourable than those for the relevant Australian equivalent. To the extent that the earnings are no less favourable, there is no substantial contrary evidence that the nominee’s set of terms and conditions is not less favourable than the Australian equivalent set.
For these reasons, the requirements of regulation 2.72(10)(c) are met.
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions for employment that are, or relevantly would be, provided to an Australian citizen or permanent resident, would be greater than the TSMIT specified in the relevant legislative instrument. 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: reg 2.57. The requirements of reg 2.72(10)(cc) do not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument: reg 2.72(10AB).
As stated, the TSMIT for the nominated position is AUD $53,900. The employment contract dated 10 July 2017 provides that the nominated employee’s income is $60,225 gross per annum. Both Mr Zizioli and Mr Soffredini confirmed this at the hearing. I am satisfied that the nominated employee’s annual earnings are greater than the income threshold specified in the relevant legislative instrument as required by regulation 2.72(10AB). For these reasons the requirements of regulation 2.72(10) do not apply.
As part of the nomination, the applicant must certify various matters in writing: reg 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 ANZSCO or specified in the instrument IMMI 17/060;
·If the applicant lawfully operates a business in Australia the nominated occupation is with a business, or associated entity of the applicant, or else is an occupation specified in the instrument;
·The qualifications and experience of the nominee are commensurate with those specified in the occupation in the ANZSCO.
As stated, the nominated occupation is café\restaurant manager ANZSCO 141111 in the short skilled occupation list of legislative instrument IMMI 17\060. The evidence establishes that the nominated employee possesses the following experience and qualifications: a Certificate II in Customer Engagement and Certificate III in Business Management attained in 2016 and 2017 respectively; and ten years of relevant industry experience.
As stated, the nominated employee has been working for the nominated employer since 20 February 2017 and continues to be employed by the company. The nominated employer has provided to the Tribunal a letter dated 14 July 2021 setting out the nominating employee’s responsibilities. Messrs Zizioli and Soffredini gave evidence that the nominated employee is capable and confidently fulfilling these requirements.
The nominated position of restaurant manager will manage, oversee and guide the successful and smooth operation of the restaurant. This role includes but is not limited to the front of the house, kitchen operations, staff and restaurant supplies. The qualifications required for ANZSCO is a AQF Associate Degree, Advanced Diploma or Diploma, at least three years of relevant experience may substitute the formal qualification. The nominated employee meets the ANZSCO requirements for café restaurant manager. In addition, the evidence establishes the nominated employee has industry experience in hospitality management, excellent time management and organisation skills and excellent customer service and communication skills. I am satisfied the nominated employee satisfies these additional requirements by the nominated employer.
The nominated employer lawfully operates a business in Australia. The qualifications and experience of the nominated employee are commensurate to those listed by ANZSCO 141111. Furthermore, a written certification has been provided for the above matters.

For these reasons, the requirements of regulation 2.72(10)(e) are met.
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 assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The nominated employer has provided a letter to the Tribunal dated 14 July 2021 certifying that Mr Soffredini is an employee and has been employed since 20 February 2017. It certifies he is currently employed full time in the position of restaurant manager. It sets out his duties and responsibilities. The nominated employer has provided to the Tribunal photographs of recent renovations to the restaurant showing the dining area of the restaurant and the menu displayed on a board. The nominating employer has also provided a copy of its menus. The nominated employer provided to the Tribunal the employment agreement dated 10 July 2017. I am satisfied that the position associated with the nominated occupation is genuine. Accordingly, the requirements of regulation 2.72(10)(f) are met.
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 the instrument IMMI17\060. The nominating employer has provided to the Tribunal a copy of the employment agreement dated 10 July 2017. Moreover, the nominated position of restaurant manager is specified in the legislative instrument. For these reasons, the requirements of regulation 2.72(10)(h) are met.
Separate criteria apply where the applicant is a party to a work agreement, other than a Minister: regs 2.72(11), (12). The nominating employer is not a party to a work agreement and accordingly requirements of regs 2.72(11) and (12) do not apply.
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the labour market testing conditions unless the major disaster, or skilled occupation exemptions in sections 140GBB - 140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation. The Nomination specifies that the labour market testing conditions do not apply and the occupation is exempt. I agree. The relevant skill and occupation exemption to the LMT requirements is found in section 140GBC(3) of the Act. It provides, relevantly:
“(3) The person is exempt from the requirements to satisfy the labour market testing condition in section 140GBA if:
(a) Either or both of the following are required for the nominated position (indistinct) in relation to the nominated occupation:
(i)A relevant Associate Degree, Advanced Diploma or Diploma covered by the AQF, other than a protected qualification;
(ii)Three years or more of relevant experience, other than (indistinct) experience;
(b) The nominated occupation is specified for the purpose of this subsection under subsection (4).
(4) The Minister may by a legislative instrument:
. . .
(b) Specify an occupation, or occupations, for the purpose of subsection (3).”
The occupation of café or restaurant manager (ANZSCO 141111) is classified on ANZSCO as a skill level 2 occupation. Section 2 of IMMI\13\137 specifies skill level 2 occupations for the purpose of section 140GBC(4)(b). The occupation therefore meets the requirements of section 140GBC(3)(b).
The ANZSCO entry for the occupation indicates that it requires an Associate Degree, Advanced Diploma or Diploma or three years of relevant experience. The nominated employee meets these requirements. Accordingly, the requirements of section 140GBC(3)(a) are also met.
For these reasons, the labour market testing requirements are not applicable.
CONCLUSION
For the above reasons the nominating employer meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes the decision that the nomination is approved.
Peter Newton SC
Member

[2022] AATA 2198

14 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction