MAMAK CHATSWOOD PTY LTD (Migration) - [2021] AATA 2085

MAMAK CHATSWOOD PTY LTD (Migration) [2021] AATA 2085 (14 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MAMAK CHATSWOOD PTY LTD
CASE NUMBER:  1820167
HOME AFFAIRS REFERENCE(S):          BCC2018/1146955
MEMBER:Alan McMurran
DATE:14 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 14 May 2021 at 11:54am

CATCHWORDS
MIGRATION – approval of a nomination – position of Café or Restaurant Manager – genuine position – adverse information – terms and conditions of employment – day-to-day responsibilities fully delegated to the nominee – exemption from labour market testing condition – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Khan v Minister for Immigration & Anor [2016] FCCA 333
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The application

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 June 2018 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).
The applicant applied for approval on 10 March 2018. 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.
The applicant conducts a Malaysian restaurant business trading as Mamak at Chatswood in Northern Sydney. The applicant is seeking to appoint a 33 year old Malaysian citizen, Sharifah Noor Elisha (“the nominee”) in the position of Café or Restaurant Manager (the “nominated position”).
The nominee has made a related application for renewal of a Subclass 457 visa for the nominated position, which has been refused. The nominee has also sought review of the visa refusal.[1]
[1] T case 1834367
Department decision
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 found the nominated position was not consistent with the nature of the business operated by the applicant, and therefore was not “genuine”.
The delegate determined there was insufficient information to explain the “split” in duties between the kitchen manager and the director (who was the chef in the kitchen) and the nominee. There was also insufficient information in the organisational chart provided to determine who would be reporting to the nominee.
The delegate found in the totality that the nominee was actually unlikely to be performing the full breadth of duties as defined in ANZSCO for the nominated position.
Tribunal process
11 July 2018, the applicant sought review of the Department decision refusing the nomination.
On 21 January 2021, the Tribunal sent an invitation to the applicant to provide updated and current information to support the application.
On 4 February 2021, the applicant responded with multiple submissions. The responses sought to address the prescriptive requirements in regulation 2.72 and addressed the issue specifically of ‘adverse information’ involving a person associated with the applicant.
On 24 February 2021, the application was constituted to a member for decision.
The Tribunal determined it was unable to decide the matter on the papers alone and without a hearing. The Tribunal was also mindful of its objective to provide a mechanism for decision-making that is fair, just, economical, informal, and quick.
For that reason, the Tribunal determined it should conduct a hearing of this application together with a hearing of a second application for review of another nominated position in the same restaurant. Both applications involve a common issue arising concerning ‘adverse information’ affecting the applicant.
On 1 April 2021, the Tribunal invited the applicant to a combined hearing with the applicant’s review, in Tribunal case 1924126. The Tribunal invitation includes a request for the applicant to provide any additional documents as part of the hearing preparations.
On 8 April 2021, the applicant’s representative responded, accepting the invitation for the combined hearing to be conducted by video, which the Tribunal regarded as the most efficient means for expediting the process, and during the period of the pandemic.
On 6 May 2021, the applicant appeared by video to give evidence and present arguments and in accordance with the Tribunal’s current pandemic protocol. The applicant’s sole director, Alan Wing-Keung Au (“the director”), appeared with his business partner, Clement Lee representing the applicant. The Tribunal informed the parties that the evidence in the proceedings may be considered by the Tribunal in both applications [2]. No objection was taken to this course either prior to or at the hearing itself.
[2] T cases 1820167 and 1924126
On 11 May 2021, the applicant provided a written submission as directed by the Tribunal following the hearing.
The applicant was represented in relation to the review by its registered migration agent, who also attended for the combined hearings.
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
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.
The Tribunal has available for consideration the Department and Tribunal files together with the written submissions from the applicant before hearing and post-hearing. Importantly, the Tribunal also has available for consideration the oral evidence presented by the witnesses at hearing and the submissions from the representative.
The Tribunal also considers Department policy and the application of the Act and Regulations, as applicable, and set out below.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The application seeks approval for the nomination of a Café or Restaurant Manager (ANZSCO 141111). The Tribunal finds that the applicant is nominating the occupation under s.140GB(1)(b), requiring prescribed criteria to be satisfied.
The Tribunal finds on the available information and from the Department and Tribunal files that the applicant has identified in the nomination the nominee, as holder of a Subclass 457 visa, as the person who will work in the occupation.
The Tribunal is satisfied from the produced documents that the nomination application was made using the approved form and fee, and that the information from the applicant has identified the nominee in the nomination.
The information discloses that the applicant has provided the requisite certification that the applicant has not engaged in conduct that constitutes a contravention of s.245AR(1) of the Act, relating to paying for a visa outcome. The application information also includes the location at Chatswood in Sydney where the occupation will be carried out, and the name and ANZSCO code, where the applicant is a standard business sponsor.
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
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.
From the Department information, the Tribunal is satisfied the applicant is a standard business sponsor, approved on 16 April 2018, and which sponsorship is effective until 16 April 2023. The applicant is not a party to a work agreement.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
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.
The applicant’s information, including copy of a passport identification, discloses that Ms.Sharifah Noor Elisha, a 33-year-old Malaysian citizen, is the employee who will work in the nominated occupation of Café or Restaurant Manager. The Tribunal is satisfied on the information that the applicant has identified the relevant person in the nomination.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
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 IMMI17/079 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).
As at the date of decision, the nominee is not the holder of a Subclass 457 visa, and the requirements of r. 2.72(6),(7A) and (10) (g) do not apply. The nominee is currently on a Bridging visa awaiting the outcome of the nomination decision and the related visa application.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one.
·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 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
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal finds that the applicant has provided the name of the occupation, Café or Restaurant Manager and the correctly identified code for that occupation, ANZSCO 141111.
The Tribunal finds the application has also provided as part of the nomination, the location at which the nominated occupation is to be carried out at Chatswood in Sydney.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
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 s.245AR(1) of the Act which deals with paying for a visa outcome.
The Tribunal notes from the Department file that the available information has produced the required certification, that the applicant has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
For these reasons the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
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.
The Tribunal has found in the related review proceedings, Tribunal case 1924126, that there is adverse information about a person (the director) associated with the applicant.
The Tribunal has dealt with the adverse information finding in those proceedings, and which findings are common to this application.
The Tribunal does not repeat in these reasons the same reasoning as set out in case number 1924126. Suffice to point out however, that consistently with the finding in that case, the Tribunal finds it is reasonable to disregard such information.
Accordingly, the requirements of r.2.72(9) are met.
Specified occupation
Regulation 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 IMMI18/004 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 finds there is no information before it which prescribes a requirement for this nomination to be supported by a specified organisation.
The Tribunal finds that the nominated occupation corresponds to an occupation and six-digit code specified in instrument IMMI 18/004 as ANZSCO 141111. The occupation so coded is subject to a caveat (or applicability condition), which stipulates that the position does not relate to a limited service restaurant as defined in the instrument. The definition includes restaurants which offer fast food or takeaway service, a fast casual restaurant, or a dining establishment that offers only a limited food service.
The Tribunal has considered the definition in the instrument and Departmental policy for application of the facts in this instance, to the applicability condition. The evidence is that the applicant is a large dining-in facility with a commercial kitchen where meals are prepared from raw materials in an on-site commercial kitchen, and by preparing and cooking food portions for serving, in accordance with a menu. Meals are served at tables by dedicated wait staff, and customers are seated and order from a comprehensive menu. The restaurant is not licensed but provides corkage for BYO. Seating is available for up to 100 patrons and the applicant has a staff roster currently of 40 personnel, including casuals and part time employees.
The Tribunal is satisfied for these reasons that the applicability condition does not apply to the applicant which the Tribunal finds is not a fast food or takeaway operation offering only a limited food service.
For these reasons the requirements of r.2.72(10)(aa) are met.
The relevant instrument IMMMI 18/004 does not require the nomination of the occupation specified to be supported in writing by an organisation specified by the Minister in an instrument in writing for the paragraph.
For these reasons the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
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.
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.
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 for compliance with r.2.72(10AA).
The evidence for this application does not disclose any other Australian citizens or permanent residents performing equivalent work at the same location.
If the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI13/028 as specified by r.2.72(10AB), being the amount of $53,900 the methodology specified in the instrument does not apply.
The applicant has provided a written employment contract dated 12 March 2018, pursuant to which the nominee has an annual remuneration entitlement of $54,000 per annum, plus superannuation. The director confirmed at hearing in his oral evidence that the nominee receives a sum of $60,000 currently.
As this amount exceeds the amount specified in the relevant instrument, it is not necessary to determine the terms and conditions of employment that might otherwise be provided having regard to the method specified in the instrument.
The Tribunal is satisfied on the evidence that the nominee is subject to a written employment agreement setting out her terms and conditions, including salary and entitlements such as holidays, compassionate and long service leave and her duties and tasks. The Tribunal finds it is further satisfied the nominee’s earnings are no less favourable than the equivalent Australian citizen or permanent resident performing equivalent work at the same location.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
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.
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.
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 IMMI13/028 as specified by r.2.72(10AB).

The Tribunal finds on the information available that the nominee’s current salary of $54,000 per annum plus superannuation, is equal to or greater than the income threshold ($53,900) specified in the relevant instrument for r.2.72 (10AB).
For these reasons the requirements of r.2.72(10)(cc) do not apply.
Certification under r.2.72(10)(e)
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 IMMI18/004.
·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 IMMI13/067; 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 18/004.
The Tribunal has had regard to the available information and finds the applicant has certified in writing as required, 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 IMMI18/004, that the applicant lawfully operates a business in Australia, and the nominated occupation is within the applicant’s business, and is an occupation specified in IMMI13/067, and the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO guide.
For these reasons the requirements of r.2.72(10)(e) are met.
Position must be genuine
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.
This was the criterion which troubled the delegate considering the application at first instance. The concern raised was that the duties to be performed as specified in ANZSCO for the occupation were not those as described for the position, when considered in context, and that the nominee will not be performing “the full breadth” of those specified duties.
The Federal Circuit Court of Australia has provided a useful outline of questions to be addressed when considering the issue of “genuine” position.[3] In summary:
·What is the occupation nominated (and its ANZSCO characteristics)?
·What are the tasks ANZSCO associates with the occupation?
·Are the tasks claimed by the applicant for the nominee to be employed in the position “equivalent or substantially equivalent to the tasks associated with the nominated occupation”?
·If so, does the nominee or will the nominee in reality perform those tasks?
[3] see Khan v Minister for Immigration & Anor [2016] FCCA 333 at [14]
Department policy notes the importance of this criterion in the context of the 457 program, which is designed to address temporary skill shortages for specific nominated occupations. The limitation was introduced to ensure an application might be refused on this basis if there were indicators the nominee for the role was in fact less-skilled than the nomination appeared to present and would not in fact be employed in the position associated with the occupation.
Policy identifies the importance of considering the context for the position, such as the organisational structure of the business, the proposed tasks, and the tasks actually being performed.
At the hearing, the Tribunal spent some time discussing the nominee’s role with the director, to understand how the occupation and the associated position was in fact being executed and intended to be executed.
From the circumstances described by the director, there has also been a significant shift in responsibilities of the nominee since 2017, and from the time of application (March 2018) to the time of decision. That change was brought about by a reorganisation carried out by the director resulting in the registration of the applicant on 14 November 2016 and referred to below.
The occupation - Australian and New Zealand Standard Classification of Occupations (ANZSCO)
The starting point in an analysis of this criterion is to consider the ANZSCO description of the occupation. ANZSCO specifies the essential occupation characteristics to assist in determining whether the tasks of the corresponding position for the nomination actually exist. It is a practical question, requiring objective evidence as to the work performed in the position by the nominee.
ANZSCO describes the role of café and restaurant managers as persons who organise and control the operations of café’s, restaurants, and related establishments to provide dining and catering services. It has a commensurate skill level in Australia at level 2, requiring an Associate Degree, Advanced Diploma or Diploma. Alternatively, at least three years of relevant experience may substitute for the formal qualifications.
Tasks for the role include: planning menus in consultation with Chefs; planning and organising functions; arranging the purchasing and pricing of goods according to budget; maintaining records of stock levels and financial transactions; ensuring dining facilities comply with health regulations and a clean, functional and suitable in appearance; conferring with customers to assess satisfaction with meals and service; selecting training and supervising waiting and kitchen staff; and taking reservations, greeting guests and assisting in taking orders.
The evidence from the Department file[4] shows the nominee arrived in Australia in 2008 from Malaysia. The nominee commenced her employment with the applicant as a “team leader” on a part-time basis in April 2014. The nominee became the restaurant manager according to the application from 13 September 2014, when the nominee was sponsored by Mamak Pty Ltd [5] and granted a Subclass 457 visa for the role of restaurant manager, expiring 13 September 2018.
[4] 2018/12686316
[5] now in liquidation, and the predecessor company in name to the applicant
The director explained that at the time of the nominee’s employment (2014), the business was still relatively new and the director himself was the owner of the business, and as a qualified Chef, worked in the kitchen at the Chatswood premises which he also managed. He said that he ran the kitchen, and the nominee ran the restaurant.
The director explained that following the liquidation of the nominee’s previous employer, Mamak Pty Ltd, the director restructured the business incorporating the applicant and engaging the nominee full-time as the restaurant manager on her (then) Subclass 457 visa. He said that he stepped back from working in the kitchen and took on a full-time management role so as to meet compliance obligations and ensure the applicant operated in accordance with its statutory obligations. He said that this involved a substantial reorganisation, instituting new company procedures, acquiring appropriate software for both financial performance and staff management, and training. As a result, he was not able to manage the day-to-day operation of the applicant’s restaurant at Chatswood.
He said the day-to-day responsibilities for the restaurant were fully delegated to the nominee, who is now the most senior employee at the premises. He described the nominee’s daily role to include sales reconciliations and reporting to himself and his business partner, responsibility for organising and ordering supplies for the restaurant and the kitchen, managing customer service (including takeaway), taking reservations for weekly bookings, receiving and organising catering orders, supervising the waiting teams and casual staff, liaising with the kitchen and the cooks and providing feedback, and managing inventory and daily stock records. The nominee also has responsibility for training and selecting staff.
The director explained that he regularly meets with the nominee, sometimes at the Haymarket address and at other times at the premises. He said that since he has taken on the full-time management role and is no longer cooking, the nominee is fundamental to the daily management and operation of the Chatswood restaurant. He said it would be extremely difficult to replace her owing to her lengthy experience of more than six years with the director.
The Tribunal has also had regard to the nominee’s qualifications which include a Diploma in Hotel Operations from the affiliate school to the Blue Mountains International Hotel Management School, and her Diploma of Human Resources Management obtained from the Bridge Business College in June 2014.
The Tribunal listened carefully to the director’s evidence, and formed the view it was credible and truthful, and found no reason not to accept that evidence. The director’s understanding of the role, together with the importance he places on retaining the nominee to manage the restaurant was clearly explained. It was also logical in the context that the director himself no longer plays a regular daily role in the operation of the restaurant, and which he has fully delegated to the nominee.
The Tribunal finds it is satisfied that the occupation has been properly described, and the tasks for the role as outlined in ANZSCO properly identified. The Tribunal finds that following the discussion with the director, it is satisfied the current tasks for the nominee align substantially with those specified by ANZSCO for the occupation, and that the nominee is performing the majority of tasks associated with the occupation and the nominated role.
For these reasons the requirements of r.2.72(10)(f) are met.
Employment under contract
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 legislative instrument.
There is no current legislative instrument in place for this purpose.
The documents produced by the applicant include a copy of a written employment contract made 12 March 2018, signed on behalf of the applicant and by the nominee, dependent upon the grant of a further Subclass 457 visa.
The Tribunal is satisfied for these reasons the requirements of r.2.72(10)(h) are met.
Work agreements
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 the applicant, these must have been met.
The Tribunal finds on the current information that the applicant is not party to a work agreement.
For these reasons the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
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.
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.
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.
In relation to s.140GBC(4)(b), legislative instrument IMMI13/137 specifies that all occupations classified as Skill Level II, exempt the approved sponsor from the requirement to satisfy the labour market testing condition in section 140GBA.
The occupation of Café or Restaurant Manager is classified by ANZSCO as Skill Level II.
Accordingly, the labour market testing requirements in s.140GBA are not applicable.
For the reasons given above, the applicant 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 a decision that the nomination is approved.
Alan McMurran
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.