Merryanti (Migration)

[2022] AATA 2075

Merryanti (Migration) [2022] AATA 2075 (5 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss  Merryanti

REPRESENTATIVE:  Mr Abu Siddque (MARN: 0901413)

CASE NUMBER:  1905217

HOME AFFAIRS REFERENCE(S):          BCC2018/5116106

MEMBER:Stephen Witts

DATE:5 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 05 May 2022 at 9:35am

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Cook – the business is a limited-service restaurant – applicant is not the subject of an approved nomination – nominated occupation of cook is not applicable to this nominated position – nomination application associated with the position was not approved – nominated occupation of cook held by the nominee does not correspond to the occupation of cook – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.72, Schedule 2, cl 482.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 March 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 November 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the short-term stream to work in the nominated occupation of Cook ANZSCO code 351411.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482. 212 Of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is the subject of an approved nomination.

4. The applicant, Ms Merryanti, appeared before the Tribunal on 19 April 2022 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the nominator, Chargrill Charlies Wahroonga Pty Ltd.

6. The applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant is the subject of an approved nomination.

   Requirement for an approved nomination

9. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

10. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

11. The Tribunal notes that it has been provided with a copy of the delegate’s decision record regarding nominator dated 1 February 2019 by the applicant. According to the delegate it made a decision that the nominator was a limited-service restaurant, and therefore was a part of a group of businesses which included a fast food or takeaway food service or fast casual restaurant, and that it was primarily engaged in large takeaway orders and only limited dine in facilities.

12. The Tribunal notes that it was specifically contended by the delegate that the nominator was defined by the then relevant legislative instrument IMMI 18/048 as providing a nominated position that is involved in mass production in a factory setting and that therefore it is a limited-service restaurant rather than a full-service restaurant. It was further contended that the applicant has outlets in different locations and that each store may operate differently according to its size and requirements and that the location of this business in Wahroonga may have limited dining facilities and is primarily for large take-out orders.

13. The Tribunal notes that the following material has been provided including financial material including BAS statements and tax returns, a job description and market salary rate, various menus, a record of advertisements, and a record of a job offer, and other material.

14. The Tribunal in particular notes a letter of offer sent to the nominee on 27 January 2022 offering two years employment as a cook with a commencement date subject to the approval of the visa application with a starting salary of $56,000 plus superannuation.

15. The Tribunal notes that it has been provided a submission dated 27 January 2022 stating that the business of the nominator is responsible for the catering of food throughout Sydney and nearby suburbs and that it also provides catering to functions and that the nominee fits within this business structure. It was also stated that the business employs 14 staff who are temporary visa holders either holding bridging visas, student visas, or 482 visas, and that the nominee was first employed in the business on 1 July 2017. It was stated that the nominee currently holds a bridging visa C and that she previously held student visas and studied commercial cookery.

16. The Tribunal notes that it was stated that there was a previous decision made by the then Migration and Refugee Tribunal wherein it was determined that the overarching business Chargrill Charlie’s was not a fast food or takeaway food service or fast-food outlet. The Tribunal notes that it was stated that this decision referred to a different store in the St Ives location. It was further noted that this case was from 2013/2014 and that since that time there have been changes to regulatory and policy requirements in the temporary skilled visa area.

17. The Tribunal notes that also provided was a job description for the tasks of a cook and also a job description for this role. It was stated that the tasks in the two areas are identical in that the nominee is responsible for the preparation of food including gravies, sauces and garnishes and that the preparation commences with a selection of ingredients, cutting, carving and cooking; and that cooking is done in accordance with the menu or patrons’ dietary requirements by maintaining temperature and adding seasoning when necessary. It was also stated that the cook is responsible for serving dishes, storing food and assisting in menu development. It was stated that the business is not a limited-service restaurant.

18. The Tribunal notes that it was stated in the material provided via a Chargrill Charlie’s logoed position description that the nominated occupation is that of a full-time cook and that it is a key role with responsibility for the profitable and efficient execution of catering while providing effective leadership and that it reports to the head chef; and that the main tasks of this position include:

    “Preparation and selection of ingredients prior to cooking
    Carving of vegetables and presentation of garnishes
    Examination and selection of food and ingredients to select quality
    Use of spices or seasoning as required for general and specialty dishes
    Knowledge of food preservation, refrigeration and general temperature control
    Collection of recipes planning of menus and portion control
    Service of dishes, arrangement of portion control, addition of gravies sauces,
    garnishes, etc
    Training and control of kitchen staff and apprentices and instruction in occupational
    health and safety
    Examines food to ensure quality
    Regulates temperatures of ovens, grills and other cooking equipment at the venue
    Portions food, places it in dishes, adds gravies or sauces, and garnishes and stores food in temperature controlled facilities.”

19. In regard to the financial information provided the Tribunal notes that to end of financial year June 2021 the business had a total income of approximately $5 million and a net profit of $600,000. It was stated that as of January 2022 the annual income for the business had been estimated at $4.9 million. It was also noted that the sole director of this particular business, that is, Chargrill Charlie’s Wahroonga Pty Ltd, is Mr Saul Sher, and that the ABN number is 69619936033. It was further stated that in June 2021 the business underwent monitoring by Australian Border Force and that the applicant met all the program requirements of this monitoring.

20. The Tribunal also notes material provided dated 27 January 2022 stating that the nominee’s base salary was determined through Job Outlook where it was asserted that salary range is within the current market rate based on the work experience and expertise of the nominee, and that advertisements were placed through a recruitment company on that site and on Seek and that no employees whether Australian citizens or not had been retrenched due to the nominee.

21. The Tribunal notes that in submissions provided by the nominator that on 14 May 2018 it sponsored another individual from the business as chef and that this application was approved by the Department.

22. At the hearing the Tribunal had a discussion with the applicant and the nominator regarding the application.

23. The nominator stated that he is the sole owner and director of this particular business based in Wahroonga and that it is a franchise operation of Chargrill Charlie’s which he stated had approximately 19 businesses, 17 of which are in Sydney, 6 or so of which were full franchises and 13 that were either non-franchises or a hybrid business. He stated that he is also a part owner and director of other Chargrill Charlie businesses. He stated that the business has seats for approximately 24 people outside on 4 tables at the front of the business on the pavement and in the side alley way, but that it has no seats inside.

24. He stated that the business is primarily a takeaway business but that it is also a catering business for functions such as christmas parties, church parties, weddings, park parties, and boat parties, and that with these clients he provided a web-based catering service where the nominee was predominantly employed in; and that therefore his business was not a limited service restaurant but that it was primarily a takeaway business with a catering facility and that the nominee was employed mainly in this catering web-based business. He stated that the Wahroonga business actually employed about 14 temporary visa holders but that it also had 6 or 7 Australian citizen employees.

25. The nominee stated that she first came here from Indonesia on a student visa in 2009 and studied here on student visas until 2017 studying an English course, certificates III and IV in Business, a Diploma of Business, a Diploma of Hospitality and a Certificate IV in Commercial Cookery which she completed in 2017. She stated that she has been working in the business since then either as a part-time employee or as a full-time employee over the last few years. She stated that she carried out the broad functions of a cook in the business and that she also worked part-time in another Chargrill Charlie’s business.

26. The Tribunal had a detailed discussion with the nominator regarding the extent to which his business carried out the functions of a limited-service restaurant. The nominator stated that his business was primarily a takeaway business and that the majority of his customers were takeaway clients but that he also ran a catering business as noted above and that the nominee was mainly employed in the catering business. The Tribunal also had a discussion with the nominee about this matter. The Tribunal is concerned that the applicant was not able to demonstrate that the business had a significant catering addendum to its takeaway business which specifically affected its limited-service nature, and that the nominee was predominantly involved in the catering side of the business. The Tribunal is concerned that after a consideration of the evidence provided that the nominee although potentially spending some time in the catering side of the business was in fact working as a cook fundamentally in the normal takeaway part of the business as well as parts of the business that prepares packaged food for larger social events, and that the business was a limited-service restaurant. The Tribunal notes that the business had a few tables outside but that it had no dining service as such inside its premises and that patrons would queue up to order and pay for meals which they would then takeaway and consume and that some patrons may choose to sit outside on the tables and consume their takeaway meals but that fundamentally the business was a limited-service restaurant and fitted into that category.

27. The Tribunal also finds that the nature of the business itself is such that it does provide fast food and takeaway food services, it operates as part of a chain or franchise, and it mainly serves food in a packaged format. The Tribunal notes that it would be generally the case that customers may be required to pay before eating.

28. The Tribunal notes that menus have been provided which do suggest that the business does cater for large social events on occasions however it is also the case that it is predominantly a takeaway food shop which also provides some capacity to provide food to large numbers of people for social events and that this food is of a packaged takeaway nature that is also part of the takeaway business.

29. As stated the Tribunal has considered the evidence carefully and finds that although the business may engage in some takeaway orders preparing food for large amounts of people for a social event of some kind, that nevertheless it is fundamentally a takeaway business operating as part of a larger franchise business and that it is not a genuine restaurant where dine in service is a focus and where patrons order at the table and wait staff provide the plated food which has come from a kitchen prepared specifically by a chef or cook. The Tribunal also finds that the fact that it is part of a franchise arrangement is also a relevant consideration as this would suggest that significant activities otherwise carried out by food preparation staff in the business may in fact be carried out by others.

30. The Tribunal accepts that the nominee may engage in some food preparation including plating up food for dining patrons on occasions, however it also considers that this would be limited, and also that the nature of the business is such that the nominee would not be engaged in other duties and responsibilities in a substantial manner to those that are required under ANZSCO code 351411; activities such as portioning food and placing it on plates, preparing food to meet special dietary requirements, and planning menus and other suchlike activities; and as such the Tribunal finds that the business is a limited-service restaurant and that the nominated occupation of cook is not applicable to this nominated position.

    Specified occupation

31. 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 instrument in force at the time the nomination is made. The occupation must also apply to the nominee in accordance with the instrument.

32. As noted above the Tribunal finds that the business is a limited-service restaurant and as such the nominated occupation of cook held by the nominee does not correspond to the occupation of cook in accordance with ANZSCO code 351411.

33. For these reasons the requirements of reg 2.72(8) are not met.

34. The Tribunal notes that it made a finding, as above, in case number 1903179 subsequent to the hearing on 19 April 2022 as detailed above that the nominator did not meet the requirements as outlined by the regulations. On that basis the Tribunal contacted the applicant in accordance with the obligations outlined in s.359A of the Act on 20 April  2022 noting that the application made by the nominator was refused by a delegate of the Minister and that the nominator sought a review of that decision but that it had been recently affirmed by the Tribunal.

35. On that basis, the applicant was informed that the application for the nominated position has not been approved. It was also stated that this information is relevant to the review because it is a requirement for the grant of the visa that that position specified in the visa application is the subject of an approved nomination. It was also stated that this means that the applicant did not satisfy the requirement for the grant of the visa and that therefore the Tribunal must affirm the decision that is under review. The applicant was invited to give comments or respond to the above information in writing and that this should be received by 4 May 2022.

36. The Tribunal notes that no response was received by the Tribunal by this date.

37. The Tribunal therefore finds that the applicant is not the subject of an approved nomination.

38. For these reasons the requirements of cl 482.212(1) are not met.

    CONCLUSION

39. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

    DECISION

40. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

    Stephen Witts
    Member