MINT TEA & ROSEWATER GROUP PTY LTD (Migration)

[2023] AATA 215

MINT TEA & ROSEWATER GROUP PTY LTD (Migration) [2023] AATA 215 (20 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MINT TEA & ROSEWATER GROUP PTY LTD

REPRESENTATIVE:  Mr Paul John Sadler (MARN: 1382089)

CASE NUMBER:  1926342

HOME AFFAIRS REFERENCE(S):          BCC2019/3012747

MEMBER:Namoi Dougall

DATE:20 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 January 2023 at 3:11pm

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – Chef – application is compliant – genuine need to employ a paid employee to work in the position under the nominator’s direct control – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– the tasks to be performed in the position of Chef (ANZSCO 351311) correspond to the tasks of an occupation specified in the relevant legislative instrument – decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, r 5.19

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 5 September 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 13 June 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(h) of the Regulations because the delegate was not satisfied that the nominee, Isaira Ramirez’s salary in the nominated position of Chef, as set out in the application and the letter of offer dated 9 June 2019, would be less than the base rate of pay of an Australian equivalent worker would be less than the Temporary Skilled Migration Income Threshold. The delegate also found that the identified person’s annual earnings would be less than the TSMIT.

5. Mr Adil Rihani, a director of the applicant appeared on behalf of the applicant before the Tribunal on 20 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Isaira Ramizrez, the nominee.

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

   BACKGROUND

7. The applicant began trading as Mint Tea & Rosewater in 2001 as a sole trader by one of the directors. After about 6 or 7 years the buisness restructured and become incorporated and the original sole trader joined as director. The buisness was primarily a catering business and then came a catering, event, ready meals, café and the business will soon launch branded pantry products. The Café is based in Killarney Heights, NSW and has about 50 seats and serves breakfast and lunch. If the catering is quiet they do open for dinner but that has not happened for 18 months. The catering side of the business is 80% of the business which last year had a turnover of $1.1 million and the profit is around 10% to 12 %.

8. At the hearing Mr Rohani stated that currently there 8 permanent employees and 20 to 22 casuals. They also have contractors and agencies are used primarily for events to complement the permanent staff. The ready-made meals have slowed down since the opening up after the COVID-19 Pandemic and kept the business going through the Pandemic.

9. 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

1. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

Application requirements – reg 5.19(4)(a)

1. Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:

   ·be made in accordance with approved form 1395 (Internet);

   ·identify the position;

   ·identify a person in relation to the position;

   ·identify an occupation in relation to the position,

   ·identify the subclass and stream to which the nomination relates;

   ·be accompanied by the fee mentioned in reg 5.37; and

   ·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).

2. Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.

3. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019. The subclass identified in the application is Subclass 186.

4. On the available evidence, the Tribunal is satisfied and finds that the application was made on 13 April 2019 using the current approved (internet) form, identifies the position in the applicant’s business and by reference to its organisation chart, and the related person, the nominee. There is no evidence suggesting that the relevant fee has not been paid. The application identifies the position and the occupation as Chef (ANZSCO 351311), being on the current list of approved occupations, and for a Subclass 186 visa in the Direct Entry Stream.

5. The nominator has provided a written certification that the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act), and which relates to obtaining a benefit for a sponsorship-related event. The nomination application indicated that the annual turnover was $751,000 and there is no nothing on the Departmental file to indicate that the nomination training contribution charge was not paid by the applicant.

6. Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.

No adverse information known to Immigration – reg 5.19(4)(b)

1. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.

2. There is no information or evidence before the Tribunal of any adverse information regarding the nominator or a person associated with the nominator.

1. Accordingly, the Tribunal is satisfied that reg 5.19(4)(b) is met.

Mandatory licencing, registration and memberships – reg 5.19(4)(c)

1. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

2. In this instance, the relevant State or Territory is New South Wales, the relevant occupation is Chef and the date of application is13 June 2019.

3. There is no evidence before the Tribunal indicating that the occupation of Chef requires mandatory licencing, registrations or membership. Accordingly, the Tribunal is satisfied that reg 5.19(4)(c) is met. requires mandatory licencing, registrations or membership. Accordingly, the Tribunal is satisfied that reg 5.19(4)(c) is met.

Satisfactory compliance with employment laws - reg 5.19(4)(d)

1. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

2. There is no information or evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with employment laws in the State where the applicant operates. The director said he was not aware of any issues raised regarding employment and involving the applicant or any other employee. Accordingly, the Tribunal is satisfied that reg.5.19(4)(d) is met.

Training contribution debts – reg 5.19(4)(da)

1. Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.

2. Provided to the Tribunal was a copy of a Tax Invoice issued by the Department and dated 13 June 2019 for the payment by the applicant for the ENS – SAF levy based on the annual turnover of $751,000 in the amount of $3,540.

3. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.

Actively and lawfully operating business – reg 5.19(9)(a)

1. Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.

2. The applicant is a currently registered and active corporation carrying on business in Killarney Heights, New South Wales. The Tribunal was not provided with any financial statements, however, after a number of requests from the Tribunal, internal profit and loss statements for the periods ending 30 June 2020, 2021 and 2022 and for the period ending 30 November 2022 were provided. Also provided were Balance Sheets for the financial years ending 20 June 2021 and 2022. The Tribunal was also provided with BAS statements from 1 April 2021 to 30 June 2022 and Print Activity Statements from 1 August 2021 to August 2022. Also provided was a Company Tax Returns for the tax year ending 30 June 2020, as well as payslips for employees from 25 July 2022 to 29 August 2022. Therefore, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia.

3. Accordingly, the Tribunal is satisfied that reg.5.19(9)(a) is met.

Labour hire businesses – reg 5.19(9)(b)

1. Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.

2. There is no evidence before the Tribunal that the applicant nominator’s business engages in labour hire to unrelated businesses.

3. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.

Genuine need for employment – regs 5.19(9)(c) and (d)

1. Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.

2. The nominee has been working for the applicant since April 2018. Provided to the Tribunal were a series of messages regarding the safe storage of frozen food and how to defrost that food. Also provided were a number spread sheets, calculations and messages relating to the costing of menu items.

3. The Tribunal was provided with a statutory declaration dated 8 July 2022 from Mr Adil Rihani, a director of the applicant, in which he stated that he has been attempting to recruit kitchen staff, chefs, on a continual basis for 2 years with little success. Advertisements were place on online job sites including Indeed.com and Seek.com, social media, industry groups, word of mouth, community forums, and store front advertisements He also stated that it is his understanding that the job market has never been so challenging as he and others in the local industry have experienced a sharp drop of in applications to vacancy advertisements. He also stated that it was his understanding that vacancy rates have continually increased across the industry and despite the efforts to obtain staff the business has not been able over the past 24 months to locate new permanent kitchen staff.

4. At the hearing the nominee stated that her work varies as there is three businesses in one: the Café; catering; and frozen meals. On the nominee’s other evidence at hearing which is set out in detail below and as the nominee has worked with the applicant since April 2018, remaining during the COVID-19 Pandemic, the Tribunal is satisfied that the application identified a genuine need for the nominee to be employed in the position of Chef under the nominator’s direct control.

5. Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.

Future employment – regs 5.19(9)(e), (f) and (g)

1. Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.

2. Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.

3. Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.

4. Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or 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.

5. Provided to the Department was a letter of offer dated 9 June 2019 from the applicant stating the employment offer was for a full time permanent role as a Chef on renumeration of $49,100. The letter of offer indicted that the detail of terms and conditions of the offer were in the attached employment agreement. Unfortunately, the employment agreement was not attached. Provided to the Tribunal was an employment agreement dated 8 July 2022 signed by the nominee and a director of the applicant (the employment agreement). The employment agreement indicated at clause 2 that the employment would be full time for 40 hours a week and the position was that of Chef. The Tribunal notes that in clause 10 which is related to hours of work, indicates that the nominee will work 38 hours a week. The employment agreement confirmed that the nominee will continue to be paid an annual salary of $58,000.

6. Subsequently, after the hearing, the Tribunal was provided with an employment agreement signed by a director of the applicant and the nominee on 10 November 2022 (the November 2022 agreement). The November 2022 agreement indicated that the nominee would be employed as a Chef for 38 hours a week on an annualised wage arrangement of $61,157.20. Further, the term of the agreement was stated to be for at least two years and in perpetuity where the employment relationship continues.

7. The balance sheets for the periods ending 30 June 2021 and 2022 indicate that the applicant has negative equity of $609,042 and $691,106. An internal profit and loss statement of the period ending 30 November 2022 was also provided which indicated a net income of $149,640. However, the email from Mr Rohani to the representative providing the draft profit and loss statement stated that there are still some expenses that need to be entered so the statement is only draft.

8. On 13 January 2023, the applicant provided to the Tribunal internal profit and loss statements for the financial years ending 30 June 2021 and 2022 which indicated that the applicant made losses for those financial years of ($11,269) and ($12,363).  Also provided was an updated profit and loss statement for the period ending 30 November 2022 which indicated that the income for that period was $54,739.

9. The subsequent financial information indicates that the rate of losses decreased in the last 2 financial years and the applicant up to November 2022 made a profit which did not include trading during Christmas. Although the negative net assets is still high, the profit of over $50,000 indicates that the applicant will be able to reduce that amount while still paying the applicant her salary which the applicant has been doing since she was employed in April 2018.

10. On the evidence the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee at a salary of $61,157.20 per annum plus the superannuation guarantee for a period of at least 2 years.

11. Given the above, the Tribunal is satisfied that the nominee will be employed in the nominated position for at least 2 years full time and the terms and conditions of that employment do not expressly exclude the possibility of an extension. Accordingly, the requirement in Reg 5.19(4)(d) is met.

Annual earnings – reg 5.19(9)(h)

1. Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

   ·the annual market salary rate (AMSR) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: 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 AMSR, 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 specified in the instrument IMMI 18/033 (TSMIT), unless the AMSR for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);

   ·the identified person’s annual earnings in relation to the occupation will not be less than the AMSR 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): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;

   ·the identified person’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: regs 2.72(15)(f) and 2.72(16)(b); and

   ·either there is no information known to Immigration that indicates the AMSR 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).

1. The employment agreement referred to above indicated that the nominee is being paid annual earnings of $61,157.20 for a 38 hour week. The amount specified in the relevant instrument for the purposes of reg 2.72(15)(b) is $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

2. On 10 November 2022, the applicant provided the Tribunal with a statement from Mr Rihan dated 10 November 2022 which stated that the nominee was employed as a Chef under the Restaurant Industry Award as a Grade 3 (Commis Chef). It was further stated that the base rate was $24.76 per hour but under the annualised salary arrangements for the nominee, under the Award, is an additional 25% on top of the base rate of pay which equates to an annual salary of $61,157.20.

3. The November 2022 agreement also stated that if there is any shortfall in entitlements or penalty or overtime, payments will be made in accordance with the Award within 14 days.

4. On the evidence the Tribunal is satisfied that the applicant does not employ an Australian equivalent worker in the same position. In these circumstances the AMSR is to be determined in accordance with s.8 of the relevant instrument which provides that the method for determining the AMSR, where there is no equivalent Australian worker and there is a fair work instrument, is the annual earnings of an equivalent Australian worker specified in that instrument. The Tribunal is satisfied that there is a Fair Work instrument being the Restaurant Industry Award MA000119 (the Award) which applies to the occupation of Chef.

5. The occupation of Chef Grade 3 is a level 4 occupation under this Award, which lists the ordinary hourly rate for full time work as being $24.76 a week, which is equivalent to $48,925.76 per annum. There are a number of additional allowances which may also be relevant and are paid at an hourly rate, which would be paid in addition to the ordinary hourly rate. Further, as referred to in Mr Rohani’s statement of 10 November 202 under the Award there are provisions for an annualised wage instead of award provisions. Subject to meeting the provisions the employee is to be paid an annualised wage of an amount that is at least 25% more than the minimum wage. The annualised wage at 25% of the minimum wage for the occupation of Chef Grade 3 would be $61,157.20

6. On the above the Tribunal is satisfied that the AMSR for the nominated occupation of Chef is $61,157.20 and the AMSR has been determined by the applicant in accordance with the relevant instrument. Further, the AMSR, excluding any non-monetary benefits for the occupation is not less than the TSMIT. For these reasons the requirements of reg 2.72(15)(c) and (d) are met.

7. Further, as the nominee’s annual earning are the same amount as the AMSR, as set out in the November 2022 agreement, and that amount is greater than TSMIT which is $53,900. The Tribunal is satisfied that the nominee’s annual earnings in relation to the occupation will not be less than the AMSR for the occupation and, excluding non-monetary benefits, will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(e) and (f) are met

8. Further, the Tribunal has considered the entirety of the Departmental file provided to the Tribunal and there is no information on the file to indicate that there is any information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation. Therefore, the Tribunal is satisfied that the requirements of reg 2.72(15)(g) are met.

9. On the above, the Tribunal is satisfied that the requirements of reg 2.72(15) are met.

No information to indicate less favourable employment conditions – reg 5.19(9)(i)

1. Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

2. The Tribunal has considered the information and evidence provided to the Department and Tribunal, including the employment contract dated 18 November 2020. There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent.

3. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.

Tasks correspond to specified occupation – reg 5.19(9)(j)

1. Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 186 visa.

2. Regulation 5.19(10) requires that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(11) and in force at the time the application is made. In addition, the occupation must apply to the identified person in accordance with the instrument. In this case, the relevant instrument is IMMI 19/049.

3. The Tribunal has taken into account the tasks listed in Unit Group 3513 Chef when considering whether the tasks performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Those tasks listed in ANZSCO are as follows:

   ·     planning menus, estimating food and labour costs, and ordering food supplies

   ·     monitoring quality of dishes at all stages of preparation and presentation

   ·     discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

   ·     demonstrating techniques and advising on cooking procedures

   ·     preparing and cooking food

   ·     explaining and enforcing hygiene regulations

   ·     may select and train staff

   ·     may freeze and preserve foods

4. At the hearing Mr Rohani stated the nominee: prepares the food; devlopes and costs menus dt; orders and does stock control and general chef duties including the day to day of running kitchen. The detail is listed in the employment contract. The nominee does not hire or fire staff. Everyone prepares food based on the plan for the week. If there are more catering orders they may have to make up the ready made meals and sometimes they have to close the Café because the catering is busy and they do not have enough staff. They have to hire Chefs on a casual basis paying high rates because they cannot get permanent employees.

5. At the hearing the nominee stated the work varies as there is three businesses in one: the Café; catering; and frozen meals. From the café there is breakfast and lunch so everyday they have to prepare for the menus and every menu has 7 to 8 items and more for breakfast. In between cooking for the Café there is the preparation for the events. There is a coolroom and freezer, so everything is cooked ready for the events. Also, there is a freezer for the frozen meals sold online and if the stock is low more meals are cooked. The nominee organises everything for mainly Tuesday to Thursdays they work frozen meals and Café and Thursday to Saturday for events. There were problems with the freezer and the first thing is to call the technician, check the temperature in the food, and throw out food,  if necessary. The nominee is responsible for ensuring that the Food Safety procedure and checklist is followed. The nominee also works as catering Chef at the events. The nominee is also in charge of pastry section, desert, muffins, cakes are in her responsibility which includes private orders and the Café. From time to time the nominee does the costing for a new menu item particularly for the Café. When the costing is prepared, it is sent to Mr Rohani who decides the price for the item. There are regular stocktakes for dry items and prepared canapes.

6. At the hearing the nominee stated that the Head Chef does menu planning and the Head Chef and the nominee every 6 months changes the menu. The frozen meals are the same menu. The nominee writes on the order board and Mr Adil does the ordering online, but the nominee will do so if he is away. The menus for the events are given to the nominee who works out what needs to be ordered and when. The fresh food is ordered by text on a daily basis. The nominee checks the quality control. The nominee trains new staff and casual about WH&S. The nominee trains casual staff on how the canapes are prepared. For any new Chefs the nominee has prepared all the recipes for them to follow.

7. On the evidence the Tribunal is satisfied that the tasks to be performed in the position of Chef (ANZSCO 351311) correspond to the tasks of an occupation specified in the relevant legislative instrument, LIN 19/049. There are two additional applicability requirement for the occupation listed in the relevant instrument. Inapplicability condition 7 requires that the position is not involved in mass production in a factory setting. In applicability condition 8 requires that the position is not in a limited service restaurant. On the nature of the business and on the evidence, the Tribunal is satisfied that the position is not involved in a mass production in a factory setting.

8. In relation to inapplicability condition 8, ‘limited service restaurant’ is defined in the relevant instrument as follows:

   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.

9. The nominee had been working since April 2018 and on the evidence is integral to the business as she is the one staff member the business has employed for that long. On the evidence, the COVID-19 restrictions had prevented the buisness from providing full service. However, since the easing of restrictions the Tribunal is satisfied that business has improved. Provided to the Tribunal were menus and promotional brochures for various events together with menus, pricing and other services including styling and staffing. On the evidence the Tribunal is satisfied that the restaurant of the applicant is not a limited service restaurant.

10. Further, for nominations made before 12 August 2018, reg 5.19(10)(c) requires that certain specified training requirements are met. The nomination was made on 13 June 2019, therefore, the training requirements are not applicable.

11. Given the above findings, the Tribunal is satisfied that reg 5.19(10) is met. Accordingly, reg 5.19(9)(j) is also met.

12. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

decision

1. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Namoi Dougall
Member

Attachment – extracts from the migration regulations 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(a)be made in accordance with approved form 1395 (Internet); and

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)either:

(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

…

Direct Entry stream—additional requirements for approval

(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:

(a)the nominator is actively and lawfully operating a business in Australia;

(b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;

(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;

(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i)paragraph 2.72(15)(a) did not apply; and

(ii)references to the nominee were references to the identified person; and

(iii)references to the person were references to the nominator;

(i)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 identified person 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;

(j)the requirements set out in subregulation (10) or (12) are met.

Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream

(10)The requirements of this subregulation are as follows:

(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:

(i)made under subregulation (11); and

(ii)in force at the time the application is made;

(b)the occupation applies to the identified person in accordance with that instrument.

(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(a)the nominator;

(b)the identified person;

(c)the occupation;

(d)the position in which the identified person is to work;

(e)the circumstances in which the occupation is undertaken;

(f)the circumstances in which the person is to be employed in the position.

Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream

(12)The requirements of this subregulation are as follows:

(a)the position is located at a place in regional Australia;

(b)the business operated by the nominator is located at that place;

(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:

(i)made under subregulation (13); and

(ii)as in force at the time the application is made;

(e)the occupation applies to the identified person in accordance with that instrument;

(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:

(i)whether the identified person would be paid at least the annual market salary rate for the occupation;

(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

(g)the body must:

(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and

(ii)be located in the State or Territory in which the position is located; and

(iii)have responsibility for the local area in which the position is located.

(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(a)the nominator;

(b)the identified person;

(c)the occupation;

(d)the position in which the identified person is to work;

(e)the circumstances in which the occupation is undertaken;

(f)the circumstances in which the person is to be employed in the position.

…

Meaning of regional Australia

(16)In this regulation:

regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.