Michellechen Pty Ltd (Migration)

Michellechen Pty Ltd (Migration) [2021] AATA 392 (15 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Michellechen Pty Ltd
CASE NUMBER:  1936677
HOME AFFAIRS REFERENCE(S):          BCC2015/2792617
MEMBER:R. Skaros
DATE:15 January 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 15 January 2021 at 4:30pm

CATCHWORDS
MIGRATION – approval of a nomination – Federal Circuit Court remittal – occupation of Café or Restaurant Manager – genuine position – duties of the nominated position – requirements for existing Subclass 457 visa holder – extensive experience managing various businesses – regional business employs seven Australians – terms and conditions of employment – occupational exemption for labour market testing – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration Act 1958, s 140GB
Migration Regulations 1994, Schedule 2, cl 457.223; rr 1.13, 2.57, 2.72, 2.73
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 Immigration and Border Protection on 24 February 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 24 September 2015. 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 delegate decided not to approve the nomination on the basis that the applicant did not satisfy r. 2.72(f) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation is genuine. A copy of the delegate’s decision record was provided to the Tribunal with the application for review.
The applicant’s Director, Ms Tsi Mee Chen, who is also the nominee, appeared before the Tribunal, differently constituted, on 18 June 2018 to give evidence and present arguments. After considering the evidence before it, the Tribunal, differently constituted, decided to affirm the decision not to approve the nomination.
The applicant applied for judicial review of the Tribunal’s decision. The matter was remitted to the Tribunal for reconsideration on the basis that the Tribunal did not evaluate the duties of the nominee’s position against the description in ANZSCO for the nominated occupation of Café or Restaurant Manager (141111).
Upon reconstitution of this matter, the Tribunal requested the applicant to provide updated and current information about the requirements in r.2.72 for approval of the nomination under the Temporary Work (Subclass 457). In response, the Tribunal received detailed submissions from the representative, a statement from the applicant’s Director, Ms Chen, and various supporting documents relating to the business, its operations and financial circumstances. The Tribunal also received information about the nominated position, including a position description, employment agreement and job advertisements. The Tribunal has considered the information against the relevant requirements further below.
Ms Chen, in her capacity as the applicant’s Director, appeared before the Tribunal on 15 October 2020 to give evidence and present arguments on behalf of the applicant.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the hearing.
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 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.
Based on information in the Department’s file, the Tribunal is satisfied that the applicant identified Ms Tsi Mee Chen as the proposed applicant for a Subclass 457 visa who will work in the nominated occupation of Café or Restaurant Manager (141111). The Tribunal is also satisfied that the application was made on the approved form. The Tribunal is satisfied that the nomination includes the location, being Wongan Hills in Western Australia, at which the occupation will be carried out. The requirements of r.2.72(3) are therefore 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.
Departmental records confirm that the applicant was approved as a standard business sponsor on 16 December 2020 for a period of five years. On this basis, the Tribunal is satisfied that the applicant is a standard business sponsor. The requirements of r.2.72(4) are therefore met. 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 nomination identifies Ms Tsi Mee Chen as the person who will work in the nominated occupation. The requirements of r.2.72(5) are therefore 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 IMMI 17/057 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).
At the time of the nomination, Ms Chen was the holder of a Subclass 457 visa which was granted on the basis of being a member of the family unit of the late Mr Josef Ong. Prior to the passing of Mr Ong in 2017, the applicant nominated Ms Chen for the position of Restaurant Manager. Ms Chen has never held a Subclass 457 visa on the basis of satisfying the primary criteria for the visa.
The Tribunal is satisfied that the nomination lists all of Ms Chen’s family members who had been granted Subclass 457 visas as being members of the same family unit. Therefore, the requirements of r.2.72(6)(a) are met.
The occupation of Café or Restaurant Manager (141111) is classified in ANZSCO as Skill level 2. Using ANZSCO as a guide, the Tribunal considers that a person seeking to undertake a position in this occupation is required to demonstrate that they have an AQF Diploma, Advanced Diploma or Associate Degree or at least three years of relevant experience.
In her evidence to the Tribunal, Ms Chen indicated that her highest qualification level is a high school diploma. She indicated that has had extensive experience managing various businesses in Malaysia and that she had assisted her late husband in managing the operations of the applicant’s restaurant in Wongan Hills since they purchased the business in 2011. Following the death of Mr Josef Ong, Ms Chen became the sole director and shareholder of the company and was responsible for the day to day operations of the restaurant business.
At the hearing the Tribunal queried Ms Chen about the types of tasks she regularly undertakes as the restaurant’s manager. In response, Ms Chen gave evidence that she is responsible for managing front of house, planning the menu, including the specials menu, creating the roster, overseeing health, safety and food quality, and completing some financial and administrative tasks. Ms Chen indicated that she has been performing these tasks since 2016.
The Tribunal is satisfied on the evidence before it that Ms Chen has in excess of three years relevant experience and that Ms Chen has demonstrated to the satisfaction of the Tribunal that she has the skills necessary to perform the occupation. The requirements of r.2.72(6)(b) are therefore met.
There is no evidence before the Tribunal to suggest that Ms Chen was granted her last Subclass 457 visa following the waiver of the requirements of PIC4006A(1)(c). The requirements of r.2.72(7A) are therefore not applicable in this case.
The Tribunal also notes that Ms Chen was granted her last Subclass 457 visa on the basis of being a member of the family unit of her late spouse and accordingly she was not granted the visa on the basis of having satisfied the requirements of cl. 457.223(6). The requirements of r.2.72(10)(g) are therefore not applicable in this case.
The Tribunal acknowledges that Ms Chen will be seeking a waiver with respect to the English language requirement in cl. 457.223(4)(eb) on the basis that the proposed base rate of pay is higher than that specified by the Minister in the relevant instrument for the purposes of cl. 457.223(6) and that the grant of the 457 visa would be in the interest of Australia as the business, which is located in regional Australia, and employs at least seven Australians. The Tribunal notes however that it is not necessary to assess whether the nominee satisfies the requirements of cl. 457.223(6) in this decision as she was not granted her last Subclass 457 visa on this basis.
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 instrument IMMI 17/060; 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 is satisfied that the applicant provided, as required, the name of the occupation and the corresponding 6-digit ANZSCO: Café or Restaurant Manager (141111). The applicant has also provided the location at which the nominated occupation is to be carried out: Wongan Hills, WA. The requirements of r.2.72(8A) are therefore 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.
There is no evidence before the Tribunal to indicate that there is any adverse information known to the Department about the applicant or an ‘associated person’.
The Tribunal is accordingly satisfied that 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 IMMI 17/060 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 occupation of Café or Restaurant Manager (141111) is specified in the relevant instrument but is subject to the following inapplicability condition:
8: The position is in a limited service restaurant.
limited service restaurant includes the following:
(a) a fast food or takeaway food service;
(b) a fast casual restaurant;
(c) a drinking establishment that offers only a limited food service;
(d) a limited service cafe, including a coffee shop or mall cafe;
(e) a limited service pizza restaurant.
The evidence before the Tribunal is that the applicant operates a restaurant: Ah Wong Roadhouse in Wongan Hills WA. It is submitted that the business is not a limited service restaurant as meals are cooked to order and not mass produced. It is submitted that the restaurant offers both dine-in and takeaway food options. In relation to dine-in customers, the evidence before the Tribunal is that customers are seated and offered a menu, waitstaff then return to the table to take their orders and the meals are brought to the table by the waitstaff. It is submitted that customers then finalise the payments at the front counter upon completion of their meal.
It is submitted that the Wongan Hills community accepts the business as a full-service restaurant and that the restaurant featured in Australia’s Golden Outback Holiday Planner 2018 magazine and identified as a key restaurant in the area for authentic Asian cuisine. The business also provides catering services to the local council for their meetings and for the local school canteen. The Tribunal also has before it photographs of the restaurant, which show that it has indoor and outdoor dining areas.
On the totality of the evidence before it, the Tribunal is satisfied that the business operated by the applicant is not a limited service restaurant as defined in the instrument. It follows that the occupation of Café and Restaurant Manager is applicable to the nominee in this case.
The Tribunal has next had regard to the tasks involved in carrying out the position as set out in the job description and as described by Ms Chen at the hearing for the purpose of determining whether occupation nominated by the applicant corresponds to an occupation specified in the instrument.
In this case, the nominated occupation is that of Café or Restaurant Manager (141111). According to the Australian and New Zealand Standard Classification of Occupations (v. 1.3) (ANZSCO), the indicative skill level and tasks are as follows:
UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS
CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand:
NZQF Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
·planning menus in consultation with Chefs
·planning and organising special 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 are clean, functional and of suitable appearance
·conferring with customers to assess their satisfaction with meals and service
·selecting, training and supervising waiting and kitchen staff
·may take reservations, greet guests and assist in taking orders
Occupation:
141111 Cafe or Restaurant Manager
141111 CAFE OR RESTAURANT MANAGER
Alternative Titles:
Food and Beverage Manager
Restaurateur
Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.
In the position description provided to the Tribunal it was indicated that the restaurant manager is responsible for organising and controlling the day to day operations of the restaurant to ensure that standards and targets are achieved and maintained. The tasks and responsibilities of the position as described largely reflected the types of tasks included in ANZSCO for the occupation of Café or Restaurant manager as extracted above.
At the hearing Ms Chen provided detailed evidence of the tasks she undertakes in the position on a day to day basis which were consistent with the types of tasks described in ANZSCO. The Tribunal raised the concern with Ms Chen that, as she is the proprietor of the business, she may undertake other tasks that are not consistent with the nominated occupation. In response, Ms Chen explained that any bookkeeping or administrative tasks she undertakes is quite minimal, less than two hours a week, and that she has delegated the bookkeeping type tasks to her son, Philip Ong.
Having carefully considered all of the evidence before it, the Tribunal is satisfied that the nominated occupation corresponds to Café or Restaurant Manager (141111), which is an occupation specified in the relevant instrument and is applicable to the applicant.
Given the above findings, the requirements of r.2.72(10)(aa) are met.
In this case there is no requirement for the nomination to be supported by a specified organisation. The requirements of r.2.72(10)(b) are therefore 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: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028, which is specified at $250,000: r.2.72(10AB).
The applicant has submitted, and the Tribunal accepts, that there is no Australian performing equivalent work at the same location.
The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in Offer of Employment dated 28 October 2020 which indicates that the annual base salary of the nominee will be $96,400. The contract also sets out the details of the nominee’s superannuation and leave entitlements. It is submitted that the nominee’s earnings are higher than those that would be provided to an Australian equivalent.
At the hearing Ms Chen explained that she has been receiving a base salary of $55,000 and dividends, to which she is entitled, from the company’s profits. Ms Chen acknowledged that if she is granted the Subclass 457 visa, then the applicant must comply with their sponsorship obligation to pay the nominated base salary of $96,400. Ms Chen confirmed that this would occur upon commencement of her employment as the holder of a Subclass 457 visa. The Tribunal has considered the financial circumstances of the business and is satisfied that it has the financial capacity to support the nominated salary.
The Tribunal has also had regard to the current market salary information provided to it, including salary surveys and job vacancies for similar positions which indicate that the salary range for a highly experienced restaurant manager is between $70,000 and $89,000. The Tribunal is satisfied on the evidence before it that the proposed base salary of $96,400 is greater than the market rate for an Australian equivalent.
On the evidence before it, the Tribunal is satisfied that the terms and conditions of the nominee’s employment will be no less favourable than those that are provided, or would be provided, to an 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 IMMI 13/028: r.2.72(10AB).
The nominee's annual earnings are not equal to or greater than the income threshold in IMMI 13/028 (i.e. $250,000), r.2.72(10AB) is therefore not applicable in this case.
The Tribunal has also had regard to the information provided to it regarding the annual earnings of an Australian equivalent, as set out above, and is satisfied that they are greater than the current TISMIT of $53,900. For these reasons the requirements of r.2.72(10)(cc) are met.
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 IMMI 17/060;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;
·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 the instrument relevant to this requirement; 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 17/060.
The Tribunal is satisfied on the basis of the relevant certifications in the nomination application that 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.
The Tribunal has had regard to all the evidence before it regarding the nature and size of the applicant’s business, Ms Chen’s role in the business, including the tasks she undertakes in the position on a day to day basis and Ms Chen’s involvement in the business to date.
As noted above, Ms Chen is the sole director and shareholder of the applicant company. She and her late spouse travelled to in Australia with their three children as holders of 457 visas. Ms Chen’s late spouse was sponsored as the primary visa applicant by Sho Investments Pty Ltd which operated Ah Wong’s Restaurant. Ms Chen also worked at front of house for the business. In 2012 Ms Chen and her late spouse purchased the business through Michellechen Pty Ltd (the applicant). In 2014 Ms Chen applied for a Subclass 457 visa as the primary visa applicant on the basis of a nomination in the occupation of Customer Service Manager. That nomination was refused. A further nomination in the occupation of Café or Restaurant Manager was made by the applicant in respect of Ms Chen. During the processing of that nomination Ms Chen’s spouse passed away and she became responsible for managing the operations of the restaurant.
Ms Chen provided detailed evidence regarding the operations of the business, its trading hours, catering services and sale of convenience items. Ms Chen also gave evidence that she made changes to the business including updates to the menu, expanding to dine-in options and catering. The financial reports for the applicant indicate that the business has a consistent annual turnover of $1.4 million and is profitable.
At the hearing, Ms Chen gave evidence that the applicant employs two full time cooks, three part time kitchen hands and three casual wait staff. She stated that the restaurant has been operating in Wongan Hills, a small regional town of 28,000 residents, for the last 14 years. She stated that the restaurant employs locals who are Australian citizens. Ms Chen stated that she has managed the restaurant and served the local community of Wongan Hills. She stated that they are supported by the community who want to see the restaurant continue to operate in the area.
Having carefully considered the evidence before it, the Tribunal is satisfied that the applicant’s restaurant is a well-established business in regional Australia which has a genuine need for a restaurant manager to undertake the types of tasks set out in ANZSCO. The Tribunal is satisfied that the position nominated by the applicant is a genuine vacancy and that the types of tasks that will be carried out by the nominee in the position, as discussed above, are consistent with the tasks included in ANZSCO for the occupation of Café or Restaurant Manager (141111).
The Tribunal accordingly finds that the position associated with the nominated occupation of Café or Restaurant Manager is genuine. 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 an instrument for the purposes of this paragraph.
The Tribunal has received a copy of the employment agreement entitled ‘Offer of Employment’ dated 28 October 2020 which details the terms and conditions of the nominee’s employment. 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 applicant in this case is not a party to a work agreement, accordingly, 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 the relevant instrument for this paragraph. 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.
The labour market testing condition does not apply in this case because the nomination is subject to the occupational exemptions in the relevant instrument: s.140GBC. The Minister specified for the purpose of paragraph 140GBC(4)(b) of the Act all occupations that are classified in the ANZSCO as Skill Level 2. As the indicative skill level of the nominated occupation of Café or Restaurant Manager is Skill level 2, the Tribunal finds that the applicant is exempt. It follows that 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.
R. Skaros
Senior 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.
(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 that:
(i)       are provided; or
(ii)      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.

[2021] AATA 392

15 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Remedies

Procedural Fairness