Medi Bar Pty Ltd (Migration)

Medi Bar Pty Ltd (Migration) [2024] AATA 233 (6 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Medi Bar Pty Ltd
REPRESENTATIVE:  Ms Angela Chan (MARN: 9256542)
CASE NUMBER:  2102688
HOME AFFAIRS REFERENCE(S):          BCC2020/1972311
MEMBER:Antonio Dronjic
DATE:6 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 06 February 2024 at 4:15pm
CATCHWORDS
MIGRATION – approval of a nomination – Short-term stream – occupation of Café or Restaurant Manager – genuine position – adverse information – associated entity barred from further sponsorship for 12 months – digital payroll system installed – table service restaurant – tasks of the position correspond to nominated occupation – terms and conditions no less favourable – updated financial information – labour market testing – decision under review set aside
LEGISLATION
Corporations Act 2001
Migration Act 1958, ss 140, 245, 359
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Regulations 1994, Schedule 8, Condition 8107; rr 1.13, 2.57, 2.72, 2.73, 5.42
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 February 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 27 July 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of 3 alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in Attachment D to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(a) as the delegate was not satisfied on the evidence presented that the position associated with the nominated occupation was genuine. The applicant applied to the Tribunal on 4 March 2021 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 10 November 2021, the Tribunal received submissions from the applicant’s representative, Ms Angela Chan of Dispute Resolution Pty Ltd. On 8 September 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act. The letter invited the applicant to provide information in writing that demonstrates the applicant meets all the requirements of reg 2.72 of the Regulations.
On 22 September 2023, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
On 16 November 2023, the Tribunal wrote to the applicant advising that it had considered the material before it and was unable to make a favourable decision on this material alone, and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 16 January 2024.
On 9 January 2024, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
Mr George Varvaritis (Mr Varvaritis) appeared on behalf of the nominating business before the Tribunal on 16 January 2024 to give evidence and present arguments. The applicant was represented in relation to the review.
Mr George Varvaritis gave evidence that his family operates 4 restaurants in Sydney:
·Medi Bar Pty Ltd operates Georges Mediterranean Bar and Grill located on the waterfront at King Street Wharf, Sydney. According to the ASIC extract provided by the applicant, the company director is George’s father, Mr Leo Varvaritis. Company shares are held by Geldim Pty Ltd and Subscriber 1 Pty Ltd.
·Steak Co Pty Ltd operates Steersons Steakhouse. According to the ASIC extract provided by the applicant, the company director is George’s father, Mr Leo Varvaritis. Company shares are held by Geldim Pty Ltd and Subscriber 1 Pty Ltd. This restaurant currently employs one restaurant manager who is an Australian citizen and is paid an annual salary of $85,000 and one assistant restaurant manager (Mr Le) who is currently paid $70,000.
·Steak One Pty Ltd operates Kingsleys Australian Steakhouse. The director and shareholder is Mr George Varvaritis. This restaurant employs one restaurant manager who is paid an annual salary of $75,000 and one assistant restaurant manager who is paid an annual salary of $70,000. Both managers are Australian citizens.
·One Shelly Street Pty Ltd operates Vessel Dining & Bar. The director and shareholder is Mr George Varvaritis. This restaurant currently does not employ a restaurant manager; those duties are undertaken by Mr George Varvaritis.
Mr George Varvaritis gave evidence that he works as Operations Manager at all 4 restaurants. He is neither paid wages by Medi Bar Pty Ltd nor directors’ fees. If the business makes a profit, he will share it with the other family members. Otherwise, he receives a nominal income of between $5,000 and $10,000 from Medi Bar Pty Ltd as a consultant. There is no formal or written consultancy agreement signed between Mr George Varvaritis and Medi Bar Pty Ltd. Mr George Varvaritis undertook to provide written authority from his father Leo confirming his authority to represent the nominating business in these proceedings.
He gave evidence that his father Leo is managing director of Georges Mediterranean Bar and Grill. Mr Leo Varvaritis works every day and, together with his son George, is responsible for day-to-day business operations. Occasionally he helps with service and oversees the work of cooks and chefs. His duties include making decisions as to who will be employed by the business. Mr Leo Varvaritis is not employed by the business and does not receive an annual salary. Instead, he takes a profit from the business.
The Tribunal noted that, according to the organisational chart provided to it, Georges Mediterranean Bar and Grill restaurant currently does not employ a restaurant manager. Mr Varvaritis stated that the organisational chart provided in September 2023 is outdated and that in October 2023, the business employed Mr Robert Lake to this position. Mr Lake is an Australian citizen employed on a full-time basis and is currently paid an annual salary of $75,000. The business employs 5 full-time chefs and a number of casual waiting staff. Two of those chefs are sponsored by Medi Bar Pty Ltd. Mr Varvaritis undertook to provide an updated organisational chart after the hearing.
He gave evidence that the business is currently advertising for the positions of head chef, bar manager and event manager. The Tribunal requested evidence of current advertising for those positions.
Mr Varvaritis stated that the business identified the need to employ a full-time assistant restaurant manager at Georges Mediterranean Bar and Grill in June 2020. In July 2020, the business conducted labour market testing and the nominee, Mr Brice Le, was selected for this position.
Mr Varvaritis gave evidence that the nominee commenced employment at the nominator’s related entity (Steak Co Pty Ltd, which operates Steersons Steakhouse) in 2018 or 2019. He is still employed as an assistant restaurant manager at this restaurant. During the COVID-19 related trade restrictions, the nominee was on unpaid leave. If the current nomination is approved, Mr Le will be transferred to work at Georges Mediterranean Bar and Grill because this restaurant operates longer trading hours.
When asked why the nominee does not currently work at Georges Mediterranean Bar and Grill, considering that he holds a bridging visa with no work restrictions, Mr Varvaritis stated that according to his understanding, he is only permitted to work for the business that sponsored him for this position.
The applicant’s representative confirmed that the nominee currently holds a bridging visa containing condition 8107. The Tribunal observed that pursuant to condition 8107(3A)(b), the holder is allowed to continue to work for the sponsoring business or an associated entity of the sponsor. The Tribunal noted that it appears that Medi Bar Pty Ltd and Steak Co Pty Ltd are associated entities pursuant to the Corporations Act 2001 (Cth).
When questioned, Mr Varvaritis gave evidence that Georges Mediterranean Bar and Grill is open 7 days per week from 11.30am to 10pm and seats over 200 customers.
According to Mr Varvaritis’ understanding, Mr Le was previously sponsored by Steak Co Pty Ltd to work at Steersons Steakhouse. According to his movement records held by the Department, Mr Le was granted a Subclass 457 visa on 27 July 2018, which was valid until 27 July 2020. He was nominated for the same position.
When questioned about what happened with that sponsorship, Mr Varvaritis gave evidence that in 2019, the Department conducted monitoring of Steak Co Pty Ltd and discovered that the sponsor underpaid some of its employees and by doing that breached its sponsorship obligations. As a result, the sponsor was barred for a period of 12 months from further sponsoring under the existing sponsorship agreement.
The applicant’s representative clarified that the sponsorship agreement was not cancelled and confirmed that the decision was made by the Department on 19 December 2019 to bar the business from further sponsorship under the existing agreement until 19 December 2020. Mr Le was one of the employees affected by the underpayment of wages.
The Tribunal raised an additional issue with the applicant and noted that reg 2.72(4) 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.
Pursuant to reg 1.13A, adverse information is any adverse information relevant to the person’s suitability as an approved sponsor and includes information that the person has been the subject of administrative action as per reg 1.13A(2)(c). As Steak Co Pty Ltd was barred from further sponsorship for a period of 12 months this entity was, in the Tribunal’s view, the subject of an administrative action.
The Tribunal noted that it appears that Medi Bar Pty Ltd is associated with Steak Co Pty Ltd pursuant to reg 1.13B. The applicant’s representative undertook to provide post-hearing submissions addressing this issue and explaining why, if the Tribunal finds that adverse information exists, it is reasonable to disregard such information.
On 31 January 2024, the applicant submitted documentary evidence and post-hearing submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment C.
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 work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
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 reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that:
·the applicant is nominating an occupation under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa, as per reg 2.73(1);
·the nomination was made using the approved form and fee, as per reg 2.73(3), (4) and (5);
·the nomination was accompanied by the applicable training contribution charge, as required by reg 2.73(5A) of the Regulations;
·the nomination was made in the Short-term stream as the nominated occupation of Café or Restaurant Manager is a short-term specified skilled occupation in the relevant instrument, LIN 19/048, as per reg 2.73(6);
·the applicant identified the nominee, Mr Brice Le, in the nomination, as per reg 2.73(8);
·the nomination included the name of the occupation and the corresponding 6-digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the annual turnover for the nomination, as per reg 2.73(9);
·the nomination included disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s 245AR(1) of the Act: reg 2.73(12);
·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per reg 2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO, that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: reg 2.73(14).
For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) 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 regs 1.13A and 1.13B.
It was revealed at the hearing that the nominator’s associated entity, Steak Co Pty Ltd, which operates Steersons Steakhouse, was subject to Department monitoring and as a result was barred from sponsoring on 19 December 2019 for a period of 12 months.
The Tribunal finds that Medi Bar Pty Ltd is an associated entity of Steak Co Pty Ltd pursuant to reg 1.13B. As noted during the hearing, pursuant to reg 1.13A, adverse information is any adverse information relevant to the person’s suitability as an approved sponsor and includes information that the person has been the subject of administrative action as per reg 1.13A(2)(c). As Steak Co Pty Ltd was barred from further sponsorship for a period of 12 months, the Tribunal finds that this entity was the subject of an administrative action.
The Tribunal considered whether it is reasonable to disregard the adverse information. In doing so, the Tribunal considered:
·the nature and seriousness of the adverse information;
·whether the adverse information arose recently or a long time ago;
·how the adverse information arose, including the credibility of the source of the adverse information;
·whether the conduct or circumstance of concern is likely to reoccur (including whether there have been steps taken to guard against this);
·how relevant the adverse information is to the person’s suitability as an approved sponsor or nominator; and
·whether there are any compelling circumstances affecting the interests of Australia.
The applicant’s representative submitted, among other things:
The ABF issued the 12-month bar as they found that four workers were underpaid a total of $10,769. Steak Co Pty Ltd undertook to repay the workers within 10 days which was done. The underpayment of the workers was a result of the difficulty in streamlining pay periods and overtime but has now been rectified with the installation of a fully digital payroll system which means that underpayments will no longer be a problem for the company.
more than fourteen months had expired since the imposition of the 12-month bar from sponsoring.
On 13 May 2023, a fresh nomination and visa application was approved for another employee at Medi Bar Pty Ltd. It was also disclosed at the time of application that an associated entity, Steak Co Pty Ltd had been subject to a 12-month bar which expired on 19 December 2020
There is no evidence that Medi Bar Pty Ltd has since been non-compliant. Medi Bar Pty Ltd has taken steps to negate the implications of relevant conduct or practices; and developed practices and procedures to ensure the relevant conduct is not repeated.
While the breach is not to be condoned, based on the evidence before it, the Tribunal is satisfied that at the time of its consideration of this issue, it is reasonable to disregard this adverse information in relation to the applicant.
For these reasons the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. Departmental records indicate that the applicant was approved as a standard business sponsor on 19 May 2019 for the period of 5 years.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
There is no evidence that the applicant owes any debt of the kind mentioned in s 140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 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 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument in force at the time the nomination is made. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds that the nominated occupation of Café or Restaurant Manager (ANZSCO 141111), is specified in the Short-Term Strategic Skills List set out in LIN 19/048. Currently, Item 8 of LIN 19/048 provides that the following inapplicability condition (caveat) is attached. If this caveat applies, the position of Café or Restaurant Manager is excluded from being approved under reg 2.72(8):
·Item 8: position is in a limited-service restaurant.

In considering whether the position is excluded because it is based in a limited-service restaurant, the Tribunal has had regard to information provided by the applicant and to the Department’s Procedures Advice Manual (PAM3).
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.
‘Limited-service restaurant’ is defined in LIN 19/048 and 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 cafe, including a coffee shop or mall cafe;
(e) a limited service pizza restaurant.
Medi Bar Pty Ltd operates Georges Mediterranean Bar and Grill located on the waterfront at King Street Wharf, Sydney. The restaurant has a seating capacity of 120 in addition to a cocktail area for 80 customers and operates 2 or 3 shifts on each day. It is open 7 days per week for lunch and dinner and additional breakfasts on Saturday and Sunday.
The nominating business operates restaurants that provide a breakfast, lunch and dinner menu. The applicant has provided a copy of its menu, listing several made-to-order breakfast, lunch and dinner dishes. The restaurant operates a full commercial kitchen, food is made to order from fresh ingredients and requires a qualified cook to produce the meals.
The Tribunal is satisfied that the food offered is cooked fresh as ordered, daily, and can be modified at a customer’s request. The Tribunal is further satisfied that the restaurant predominantly offers table service for customers dining in, although it also offers takeaway service. The menu provided indicates that there is a relatively wide range of dishes offered.
Based on the evidence before it, the Tribunal is satisfied that the applicant’s business does not fall within the parameters of a limited-service restaurant, and as such, the Tribunal is satisfied that the position is not excluded by virtue of the inapplicability condition in Item 8 of LIN 19/048.
Given this, the Tribunal is satisfied that the nominated position is not excluded as it does not fall within the parameters of the caveat, Item 8 of LIN 19/048.
For these reasons, the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The applicant submitted evidence that the nominee has been working in the nominated position since late 2018 or early 2019. Having considered the evidence submitted by the applicant, the Tribunal is satisfied that duties and tasks associated with the nominated occupation of Café or Restaurant Manager are consistent with both the role’s description in ANZSCO and the operational requirements of the applicant’s restaurant.
Based on the evidence before it, the Tribunal is satisfied that the position offered to the nominee is genuine. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee’s experience and qualifications. The Tribunal is satisfied, on the evidence before it, that there is a business need for the position which supports the genuine need for the position. The Tribunal has also had regard to the applicant’s financial statements, company tax returns, business activity statements and payroll records that were provided to the Tribunal.
Accordingly, in consideration of the evidence before it, the Tribunal is satisfied that the position associated with the nominated occupation is genuine and it finds that the requirements of reg 2.72(10)(a) are met.
The Tribunal accepts from the material provided, including the nominee’s latest employment agreement of 22 January 2024, the nominee’s PAYG summaries provided and details of the nominee’s work history with the applicant, that the position is a full-time one. Accordingly, it finds that reg 2.72(10)(b) is met.
As the criteria in both reg 2.72(10)(a) and (b) are satisfied, the requirements in reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the relevant instrument.
In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by it or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.
The applicant has provided to the Tribunal a copy of the employment agreement dated 22 January 2024 setting out the nominee’s terms and conditions of employment and providing a salary (exclusive of superannuation) of $70,000 per year.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements that must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the relevant instrument. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to the relevant instrument: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03;
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold (TSMIT) specified in the relevant instrument, unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
The Tribunal is satisfied, from the evidence provided, that the nominee’s annual earnings are $70,000 not including superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy reg 2.72(15).
The Tribunal notes that although there is a Restaurant Industry Award, the applicant determined the annual market salary by way of reviewing advertisements for similar positions on Seek and Indeed data. According to the applicant’s market research, the average salary for a restaurant manager in Sydney is between $55,000 and $65,000 depending on the location and experience of the employee. The nominee’s employment contract includes an annual salary of $70,000, and the Tribunal is satisfied that it aligns with the prevailing market rates in the location.
Based on the evidence before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to the relevant instrument. For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(15)(c) are met.
The Tribunal is satisfied that the annual market salary rate exceeds the current TSMIT of $53,900, and thus finds that the requirements of reg 2.72(15)(d) are met.
The Tribunal finds that the nominee’s annual earnings of $70,000 will not be less than the market salary rate and thus the requirements of reg 2.72(15)(e) are met. It further finds that the nominee’s total annual earnings exceed the TSMIT, and thus the requirements of reg 2.72(15)(f) are met.
Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of reg 2.72(15)(g) are met.
Accordingly, the requirements of reg 2.72(15) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) applies.
The Tribunal has had regard to the terms and conditions of the nominee’s contract of employment. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with National Employment Standards.
The Tribunal is therefore satisfied that reg 2.72(18)(a) is met. There is no evidence before the Tribunal that the applicant has engaged in discriminatory recruitment practices, given the applicant’s evidence of its ongoing recruitment efforts to date. Accordingly, the Tribunal finds that reg 2.72(18)(b) is met.
Labour market testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
For these purposes, labour market testing (LMT) 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 LMT condition, the testing must be undertaken within a prescribed period as set out in the relevant instrument. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the LMT must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous 4 months, and if there are any relevant redundancies or retrenchments, the LMT must have been undertaken after those events; 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 manner in which LMT in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI 18/036.
The applicant did not claim, nor did it present evidence that, it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2), to require the applicant to undertake the LMT.
There is currently no legislative instrument which prescribes a major disaster exemption or a skill and occupational exemption. Accordingly, the applicant must satisfy the LMT requirements set out in IMMI 18/036.
Part 2 of IMMI 18/036 sets out details of the period, manner and evidence required for advertising the nominated position. Evidence of these details must accompany the nomination when it is lodged with the Department. Section 6 of IMMI 18/036 states that the period within which the LMT must be undertaken is within the 4-month period ending on the day on which the nomination is lodged. Information in relation to advertising the nominated position is set out in s 8 of IMMI 18/036.
The Tribunal has reviewed the information accompanying the applicant’s nomination when it was lodged on 27 July 2020 and is satisfied that:
·LMT commenced on 23 July 2020 as required by s 6 of IMMI 18/036. The applicant provided an invoice dated 24 June 2020 paid to Seek Ltd and an invoice dated 30 June 2020 paid to Indeed Pty Ltd;
·the advertisements were in English as required by s 8(2) of IMMI 18/036;
·the advertisements were placed on the Seek and Indeed websites;
·the advertisements contained details of the position as required by s 8(4) of IMMI 18/036;
·applications or expressions of interest for an advertised position were accepted for at least 4 weeks from when an advertisement for the position was first published, as required by s 8(5) of IMMI 18/036;
·the applicant provided a written submission stating reasons why a suitably qualified and experienced Australian citizen or Australian permanent resident, or suitably qualified and experienced eligible temporary visa holder, was not readily available to fill the nominated position; and,
·as noted above, the applicant provided copies of 2 advertisements used to advertise the position as required by s 9(3) of IMMI 18/036.
Based on this evidence, the Tribunal is satisfied that:
·the LMT was undertaken within the specified period as required by s 140GBA(3)(a) and s 140GBA(4) of the Act;
·the LMT was undertaken in the manner and for a duration specified as required by s 140GBA(3)(aa), s 140GBA(5), s 140GBA(6) and s 140GBA(6AB) of the Act;
·the nomination when lodged with the Department was accompanied by the specified evidence of LMT, as required by s 140GBA(3)(b) of the Act; and,
·information was provided in relation to responses to advertisements, as required by s 140GBA(3)(d) of the Act.
The Tribunal is further satisfied that the applicant indicated in the nomination application that no Australian citizens or permanent residents had been made redundant or were retrenched from the nominated occupation. Therefore, s 140GBA(4A) of the Act does not apply in this case.
For these reasons, the Tribunal is satisfied that the LMT requirements in s 140GBA of the Act are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The application was made on 27 July 2020 and the information from the Department is that the applicant paid the training contribution charge. Therefore, the requirements of s 140GB(2)(aa) are met.
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.
Antonio Dronjic
Member

ATTACHMENT A: DOCUMENT LIST
·Submissions from the representative, Ms Angela Chan, dated 21 September 2023.
·Company tax return for Medi Bar Pty Ltd for FY 2021 and 2022.
·Balance sheet for Medi Bar Pty Ltd as of June 2023.
·Business activity statements for the period July 2021 to December 2021 and January 2022 to December 2022.
·Profit and loss statement for July 2022 to June 2023.
·Business activity statement for January to March 2023.
·Medi Bar Pty Ltd special purpose financial statements for the year ended 30 June 2022.
·ASIC current and historical company extract for Medi Bar Pty Ltd extracted 22 September 2023.
·ABN lookup for Medi Bar Pty Ltd extracted 21 September 2023.
·Department of Home Affairs notification of approval as a standard business sponsor for Medi Bar Pty Ltd dated 9 May 2019.
·Business organisation chart dated September 2023.
·Job description for assistant manager for Georges Mediterranean Bar and Grill, undated.
·Seek and Indeed job advertisements for assistant restaurant manager for Georges Mediterranean Bar and Grill dated 24 June 2020.
·Invoice for Seek advertisement dated 24 June 2020.
·Invoice for Indeed advertisement dated 30 June 2020.
·Employee contract review for Brice Le dated 2 November 2023.
·Payslips for Brice Le dated 27 June 2023 to 5 September 2023.
·Employee contract review for equivalent Australian worker dated 8 August 2023.
·Payslips for Nicholas Powell dated 5 September to 19 September 2023.
·Department of Immigration and Border Protection notification of Subclass 457 visa grant for Brice Le dated 3 June 2014.
·Department of Home Affairs notification of Subclass 457 visa grant for Brice Le dated 27 July 2018.
·Department of Home Affairs notification of Bridging visa A grant for Brice Le dated 27 July 2020.
·Department of Home Affairs notification of Bridging visa B grant for Brice Le dated 7 March 2022.
·Brice Le IELTS test report forms dated 30 September 2017, 15 August 2019 and 30 November 2021.
ATTACHMENT B: DOCUMENT LIST
·Brice Le ATO notices of assessment for years ended 30 June 2019 to 2023.
·Brice Le reconciliation of wages dated 7 July 2019 to 28 June 2020 and 4 July 2021 to 26 June 2022.
·Steak Co Pty Ltd balance sheet as of June 2023.
·Steak Co Pty Ltd profit and loss statement for July 2022 to June 2023.
·Steak Co Pty Ltd special purpose financial statements for the year ended 30 June 2022.
·Steersons Steakhouse employee payment history report for Brice Le dated 25 March 2019 to 30 June 2023.
·Medi Bar Pty Ltd balance sheets for June 2021, 2022 and 2023.
·Medi Bar Pty Ltd profit and loss statement for July to June 2021, 2022 and 2023.
·Medi Bar Pty Ltd special purpose financial statements for the year ended 30 June 2022.
ATTACHMENT C: DOCUMENT LIST
·Post hearing submissions from the representative, Pryor Tzannes & Wallis, dated 23 January 2024.
·Letter of authority from Georges Mediterranean Bar and Grill dated 22 January 2024 signed by Leo Varvaritis.
·ASIC Historical and Current extracts for Medi Bar Pty Ltd, Steak Co Pty Ltd, Steak One Pty Ltd and One Shelley Street Pty Ltd, extracted 17 January 2024.
·Medi Bar Pty Ltd trading as Georges Mediterranean Bar and Grill organisational chart undated.
·Brice Le PAYG extract for 2021 – 2024.
·Nicolas Powell PAYG tax dated 2022 – 2023.
·Brice Le assistant restaurant manager employment contract for Georges Mediterranean Bar and Grill signed 22 January 2024.
·PayScale average restaurant assistant manager salary research dated 24 July 2020.
ATTACHMENT D - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2024] AATA 233

6 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Appeal