MOURTERI PTY LTD (Migration) - [2024] AATA 191

MOURTERI PTY LTD (Migration) [2024] AATA 191 (29 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MOURTERI PTY LTD
REPRESENTATIVE:  Mr Ki Young KIM (MARN: 1683672)
CASE NUMBER:  2109163
HOME AFFAIRS REFERENCE(S):          BCC2020/2380653
MEMBER:Alan McMurran
DATE:29 January 2024
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 29 January 2024 at 4:44pm

CATCHWORDS
MIGRATION – nomination of a position – Short-term stream – occupation nominated for a Café or Restaurant Manager – limited-service restaurant – inapplicability condition – business provides full table service with extensive menu – genuine and full-time position – employment conditions no less favourable – labour market testing – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245, 359
Migration Regulations 1994, Schedule 2, cls 482.223, 482.232; rr 1.13, 2.57, 2.72, 2.73, 5.42
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 19 July 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 1 July 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, MOURTERI PTY LTD, t/as Café Leura, (the “nominator/sponsor”) applied for approval on 28 September 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations.
The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream.
Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA.
The nominee, Mr. Yanto Tan, a 43-year-old citizen of the Republic of Indonesia (“the nominee”), is already the holder of a Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa, granted on 7 August 2023 in the Employer Sponsored stream, working for the applicant as nominator, and at the same location at Leura in NSW and in the same nominated occupation.
In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream for up to 2 years. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(8) because a caveat for the occupation was applicable.
The relevant caveat[1] specifies that the occupation nominated for a Café or Restaurant Manager (ANZSCO 141111) (“the nominated occupation/occupation”) is not applicable to a limited service restaurant. The delegate found on the available information that the business conducted by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MOURTERI PTY LTD (Migration) [2024] AATA 191
Case: [2024] AATA 191
Decision Date: 29 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning the nomination of a position by Mourteri Pty Ltd, which operates "Leura Café". The dispute centred on whether the applicant met the criteria for approval of the nomination for a Café or Restaurant Manager position under the Short-term stream of the Subclass 482 visa program. The nominee had been employed by the applicant for nearly six years in the nominated occupation.

The primary legal issue before the Tribunal was to determine if Mourteri Pty Ltd had satisfied all the requirements for the approval of its nomination. This involved assessing compliance with various regulations, including those pertaining to the prescribed nomination process, the absence of adverse information, the applicant's status as an approved sponsor, payment of any outstanding debts, and specific criteria applicable to existing Subclass 457 or Subclass 482 visa holders. A key point of contention was whether the nominated occupation, Café or Restaurant Manager, was eligible under the relevant legislative instrument, particularly concerning the caveat that the position should not be in a "limited-service restaurant".

The Tribunal reasoned that Mourteri Pty Ltd had met the requirements of regulation 2.72. It found that the nomination process was compliant, there was no adverse information known about the applicant, and the applicant was a standard business sponsor. Furthermore, there was no evidence of outstanding debts under section 140ZO of the Act. Crucially, the Tribunal determined that the nominated occupation, Café or Restaurant Manager, was eligible as the business provided full table service with an extensive menu, thus not falling within the definition of a "limited-service restaurant" as contemplated by the instrument. The Tribunal also noted that the specific requirements for existing visa holders did not apply in this instance.

Consequently, the Tribunal decided to set aside the original decision and substitute it with a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has decided to set aside the decision and substitute a decision approving the nomination.Background The applicant conducts a café business styled “Leura Café” at Leura Mall in the Blue Mountains, NSW. Previously, the business was conducted as “Loaves and Dishes Café” at the same address. The nominee was employed in May 2018 by the applicant in the nominated occupation on a Subclass 457 visa and in the nominated occupation. The nominee has remained in the applicant’s employment in the nominated occupation as at the time of the review, for a period of almost 6 years. The related visa application[2] by the nominee is reviewed separately[3] after this decision on the nomination. The visa application includes family members. The Tribunal has had regard to all the information in both the Department’s nomination file for the applicant and the related visa application file.[2] BCC20202384162[3] Tribunal case 2111514CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met. The Tribunal has available information including extracts from the Department’s nomination and visa application files, the related Tribunal files, and the recent submissions and documents from the representative. The information includes material which was not before the Department. The Tribunal has also had regard to the Act and the Regulations, relevant case law, the ANZSCO guide for the occupation, relevant legislative instruments, Department policy and the AAT’s publicly available Practice Directions, guides and guidelines as well as information generally available from researching the Internet.The nomination must comply with the prescribed process Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73. On the available information, the Tribunal is satisfied the applicant is nominating an occupation and the corresponding 6 digit code[4] under s 140GB(1)(b) and has identified the nominee as the proposed applicant for a Subclass 482 visa under reg 2.73(1) in the Short-term stream[5]. The nominee is nominated to work in the nominated occupation. [4] Café or Restaurant Manager (ANZSCO 141111)[5] LIN19/048 commenced 11 March 2019; for nominated occupations on 11 March 2019, this includes Café or Restaurant Manager (ANZSCO 141111), and which includes a caveat that the occupation is not a ‘limited service restaurant’, as defined in the instrument. The Tribunal is satisfied from the Departmental information that the application was made on the approved form, the fee paid together with any nomination training contribution charge applicable, and collected from the applicant in accordance with the current requirements for payment as assessed by the Department at the time of lodgement.

Evidence

Evidence Before The Court

The related visa application[2] by the nominee is reviewed separately[3] after this decision on the nomination. The visa application includes family members. The Tribunal has had regard to all the information in both the Department’s nomination file for the applicant and the related visa application file.[2] BCC20202384162[3] Tribunal case 2111514CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met. The Tribunal has available information including extracts from the Department’s nomination and visa application files, the related Tribunal files, and the recent submissions and documents from the representative. The information includes material which was not before the Department. The Tribunal has also had regard to the Act and the Regulations, relevant case law, the ANZSCO guide for the occupation, relevant legislative instruments, Department policy and the AAT’s publicly available Practice Directions, guides and guidelines as well as information generally available from researching the Internet.The nomination must comply with the prescribed process Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73. On the available information, the Tribunal is satisfied the applicant is nominating an occupation and the corresponding 6 digit code[4] under s 140GB(1)(b) and has identified the nominee as the proposed applicant for a Subclass 482 visa under reg 2.73(1) in the Short-term stream[5]. The nominee is nominated to work in the nominated occupation. [4] Café or Restaurant Manager (ANZSCO 141111)[5] LIN19/048 commenced 11 March 2019; for nominated occupations on 11 March 2019, this includes Café or Restaurant Manager (ANZSCO 141111), and which includes a caveat that the occupation is not a ‘limited service restaurant’, as defined in the instrument. The Tribunal is satisfied from the Departmental information that the application was made on the approved form, the fee paid together with any nomination training contribution charge applicable, and collected from the applicant in accordance with the current requirements for payment as assessed by the Department at the time of lodgement. The nomination includes the proposed period of stay for a visa granted on the basis of the nomination in the Short-Term stream (up to 2 years), and the applicant’s declared annual turnover calculated for the financial year submitted. The Tribunal finds that the application identifies the applicant as a standard business sponsor for the 5-year period from 16 September 2020 to 16 September 2025 and includes the following certifications:a.the relevant 6-digit occupation code for Café or Restaurant Manager (ANZSCO 141111), with the name of the occupation, identifying the nominee in the nomination.b.the principal location at the premises at Leura in the Blue Mountains, West of Sydney, where the occupation is carried out. c.the applicant’s turnover, estimated at the time of application at less than AUD 100,000.d.the applicant has not engaged in conduct that contravenes s 245AR (1) of the Act relating to paying for visa sponsorship or a sponsorship-related event.e.the nominee’s employment contract (updated as at 28 June 2023), complies with Commonwealth, State, or Territory employment laws.f.the nominator’s certification states the tasks of the nominated occupation include a significant majority of the tasks specified for the occupation of Café or Restaurant Manager, and the qualifications and experience of the nominee are commensurate with those specified for the occupation in accordance with the relevant instrument. [6] g.The occupation is not specified in accordance with the relevant instrument [7], which might otherwise exempt it from any additional requirements, and so includes certification that the nominated position is with the applicant’s business located in Australia and not with any overseas employer or an associated entity. [6] IMMI 19/048[7] IMMI 18/035

Decision

Reasons for decision

In order for the nominee to succeed there must be an approved nomination. The Tribunal has proceeded with the reviews for both the applicant and the nominee separately and as requested by the representative. Decision Having considered all the available information and submitted documentation as provided and updated for the review, the Tribunal formed the view that it could finalise the nomination review favourably for the applicant and without a hearing, in accordance with s 360(2)(a). For the following reasons, the Tribunal has decided to set aside the decision and substitute a decision approving the nomination.Background The applicant conducts a café business styled “Leura Café” at Leura Mall in the Blue Mountains, NSW. Previously, the business was conducted as “Loaves and Dishes Café” at the same address. The nominee was employed in May 2018 by the applicant in the nominated occupation on a Subclass 457 visa and in the nominated occupation. The nominee has remained in the applicant’s employment in the nominated occupation as at the time of the review, for a period of almost 6 years. The related visa application[2] by the nominee is reviewed separately[3] after this decision on the nomination. The visa application includes family members. The Tribunal has had regard to all the information in both the Department’s nomination file for the applicant and the related visa application file.[2] BCC20202384162[3] Tribunal case 2111514CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met. The Tribunal has available information including extracts from the Department’s nomination and visa application files, the related Tribunal files, and the recent submissions and documents from the representative. The information includes material which was not before the Department. The Tribunal has also had regard to the Act and the Regulations, relevant case law, the ANZSCO guide for the occupation, relevant legislative instruments, Department policy and the AAT’s publicly available Practice Directions, guides and guidelines as well as information generally available from researching the Internet.The nomination must comply with the prescribed process Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73. On the available information, the Tribunal is satisfied the applicant is nominating an occupation and the corresponding 6 digit code[4] under s 140GB(1)(b) and has identified the nominee as the proposed applicant for a Subclass 482 visa under reg 2.73(1) in the Short-term stream[5]. The nominee is nominated to work in the nominated occupation. [4] Café or Restaurant Manager (ANZSCO 141111)[5] LIN19/048 commenced 11 March 2019; for nominated occupations on 11 March 2019, this includes Café or Restaurant Manager (ANZSCO 141111), and which includes a caveat that the occupation is not a ‘limited service restaurant’, as defined in the instrument.

Ratio Decidendi

Legal Principle Established

For these reasons the requirements of reg 2.72(3) are met. No adverse information known to Immigration Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. At the time of decision, the Tribunal finds there is no adverse information known to the Department or the Tribunal, about the applicant or a person associated with the applicant. For these reasons the requirements of reg 2.72(4) are met.Nominator is a standard business sponsor Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. Department records have confirmed that the applicant is a standard business sponsor for the period from 16 September 2020 to 16 September 2025. For these reasons the requirements of reg 2.72(5) are met.Payment of debt mentioned in s 140ZO Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. There is no information before the Tribunal that the applicant has any outstanding debt under s 140ZO of the Act, and which has not been paid in full. For these reasons the requirements of reg 2.72(5A) are met.Requirements for existing Subclass 457 or Subclass 482 visa holders The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14). The nominee is not the holder of a Subclass 457 or Subclass 482 visa and there are no current family members of the nominee who hold a Subclass 457 or Subclass 482 visa as a family member of the nominee. As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.Specified occupation This is the provision which troubled the delegate, who at the time of the decision, was relying upon the impression gained from 4 photographs of the premises submitted by the applicant. 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, that is, IMMI/LIN19/048 compilation. The occupation must also apply to the nominee in accordance with the instrument.