MY MR STONEBOWL PTY LTD (Migration)

[2024] AATA 345

MY MR STONEBOWL PTY LTD (Migration) [2024] AATA 345 (14 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MY MR STONEBOWL PTY LTD

CASE NUMBER:  2112605

HOME AFFAIRS REFERENCE(S):          BCC2020/2805251

MEMBER:Antonio Dronjic

DATE:14 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 14 February 2024 at 11:24am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Restaurant Manager – labour market testing – LIN 18/036 – nominated position must be advertised on the Employment Department’s Jobactive website – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA

Migration Regulations 1994 (Cth), rr 2.72, 2.73

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 6 September 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).

2. The applicant applied for approval on 11 December 2020. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 C to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.

3. The delegate decided not to approve the nomination on the basis that the nominator did not satisfy the labour market testing condition in s 140GBA of the Act. The applicant applied to the Tribunal on 18 September 2021 for review of the delegate’s decision.

4. On 16 October 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act. The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of reg 2.72 of the Regulations and s.140GB of the Act.

5. On 30 October 2023, the applicant submitted documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.

6. 5 January 2024, the Tribunal wrote to the applicant advising that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 13 February 2024.

7. On 6 February 2024, the Tribunal received documentary evidence from the applicant. The list of documents submitted is attached to this decision record as Attachment B.

8. Ms Li Lin appeared before the Tribunal on behalf of the nominating business on 13 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. Ms Lin is the company director and shareholder. She is employed by the business and receives an annual salary. She oversees administrative and financial side of the business. She works from home and does not go to the restaurant daily.

10. Her husband, Mr Huojin Chen is also company director, but he is not employed by the nominating business. According to Ms Lin evidence, her husband oversees a related business, Mr Stonebowl Kitchen Pty Ltd.

11. The nominee, Mr Cheng commenced employment at the restaurant in late 2016. He was initially employed as a waiter on a part time basis. In 2022 he was promoted to Restaurant Manager position but continued to work on a part time basis until October 2023.

12. In her written submissions of 30 October 2023, Ms Lin stated that the restaurant identified a need to employ a full-time Restaurant Manager in 2020 because she and her husband were no longer in position to manage the restaurant themselves. The business advertised fir this position in July and August 2020.

13. When questioned why the nominee did not commence full-time employment as a Restaurant Manager earlier, considering that the business identified need for this position in 2020, Ms Lin stated that she was not certain if the nominee was allowed to work on a full-time basis. She stated that it was only in October 2023 that she obtained advice from a migration consultant confirming that the nominee was permitted to work on a full-time basis by the conditions imposed on his bridging visa. She was unable to explain why she did not check earlier with the Department if the nominee was permitted to work on a full -time basis.

14. In her evidence, Ms Lin conceded that she never intended to employ alternate person to this position. The nominee has been working at the restaurant since 2016 and performed well. Both she and her husband are satisfied with the nominee’s performance and want him to continue his employment at My Mr Stonebowl Pty Ltd. She added that the restaurant needs a person who is fluent in Mandarin language.

15. Ms Lin conceded that at the time the business conducted LMT, she made a mistake and did not advertise the nominated position on the Employment Department’s Jobactive website as it was required by the legislative instrument in force at the time the nomination application was lodged with the Department.

16. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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 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, 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.

    Labour Market Testing

18. 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 ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

19. 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 LIN 18/036 (compilation no.2). In addition:

    ·the nomination must be accompanied by the evidence specified in ss 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.

20. 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.

21. The applicant did not claim nor there is evidence before the Tribunal that requiring LMT would be inconsistent with any international trade obligation of Australia.

22. Unless the person is exempt under s 140GBB or 140GBC, the labour market testing condition under s 140GBA must be satisfied. For nomination applications made on or after 18 March 2018, no occupations are specified for these purposes and so no skill/qualification‑based exemptions can apply. In addition, the Minister has made no Major Disaster Exemption in this case. Accordingly, the Tribunal finds that the labour market testing condition applies to this nomination and that the nominating business is required to comply.

23. The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in the relevant instrument (LIN 18/036). This instrument as amended by LIN 20/156 applies to nominations made on or after 1 October 2020. The amendment inserts the new requirement that nominated position must be advertised on the Employment Department’s Jobactive website.

24. With the nomination application, the applicant submitted evidence of advertising for this position on Seek, Gumtree and Careerone in July and August 2020. As the applicant did not provide evidence of advertising nominated position on Job active website as required by the legislative instrument applicable at the time of nomination application, the delegate refused the nomination application.

25. In her written submissions and evidence given at the hearing, Ms Lin conceded that the nominating business has failed to advertise the nominated position on Job active website as required by the relevant instrument. In addition, Ms Lin stated that, despite advertising for this position, she always intended to employ Mr Cheng because he had been working for the nominating business since 2016, had her trust and performed well at his job.

26. Based on the evidence before it, the Tribunal finds that the nominating business did not advertise the nominated position on the Employment Department’s Jobactive website and therefore failed to conduct LMT as prescribed by the relevant instrument. It follows that the applicant does not meet s.140GBA(3)(aa).

27. For these reasons, the labour market testing requirements in s 140GBA are not met.

28. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

29. The Tribunal affirms the decision not to approve the nomination.

    Antonio Dronjic
    Member

    
    

    Attachment A: Document List

    ·Current and historical extract from the Australian Securities and Investment Commission (ASIC) dated 23 October 2023.

    ·Extract from the Australian Business Register extracted 19 October 2023.

    ·Department of Home Affairs notification of approval as a standard business sponsors dated 11 February 2019.

    ·My Mr Stonebowl Pty Ltd 2021 and 2022 Tax Returns.

    ·My Mr Stonebowl Pty Ltd Business Activity Statements (BAS) from July 2021 to July 2023.

    ·My Mr Stonebowl Pty Ltd 2022 Financial Statements (including a detailed Profit and Loss Statement and Balance Sheet) prepared by Jessie He & Co. Pty Ltd.

    ·Letter from Jessie He & Co. Pty Ltd Letter dated 21 October 2023.

    ·My Mr Stonebowl Pty Ltd organisational chart undated.

    ·Position description for restaurant manager undated.

    ·Comparison of the roles and duties of the nominated occupation to the description in ANZSCO dated 28 October 2023.

    ·My Mr Stonebowl Pty Ltd Restaurant Menu undated.

    ·Photos of the restaurant undated.

    ·Market Salary Analysis statement dated October 2023.

    ·Letter of offer for Ming-Chou Cheng dated 27 October 2023.

    ·Ming-Chou Cheng visa history dated September 2013 – 13 February 2024.

    ·Ming-Chou Cheng IELTS report dated 12 February 2018.

    ·Statement from the director, Li (Gracie) Lin from My Mr Stonebowl Pty Ltd dated 30 October 2023.

    ·Salary determination for nominated position statement undated.

    ·Seek, CareerOne and Gumtree advertisements dated 5 August 2020.

    ·Seek career advice for restaurant manager undated.

    ·Shortlist for job interview for My Mr Stonebowl Pty Ltd dated August 2020.

    ·My Mr Stonebowl Pty Ltd 2020 Financial Statements prepared by Jessie He & Co. Pty Ltd. Dated 16 June 2021.

    ·My Mr Stonebowl Pty Ltd certificate of registration of a company dated 11 June 2020.

    ·Photos of Restaurant undated.

    ·Ming-Chou Cheng diploma of Hospitality Management dated 12 January 2018.

    ·Ming-Chou Cheng diploma of Business dated 15 April 2019.

    ·Ming-Chou Cheng diploma of Advanced diploma of management (Human Resources) dated 20 January 2021.

    ·Ming-Chou Cheng food safety supervisor certificate dated 28 July 2020.

    Attachment B: Document List

    ·Ming-Chou Cheng PAYG payment summaries for 2017 to 2022.

    ·Ming-Chou Cheng notice of assessment for years 2017 to 2022.

    ·My Mr Stonebowl Pty Ltd balance sheet dated 30 June 2023.

    ·My Mr Stonebowl Pty Ltd profit and loss dated 30 June 2023.

    ·My Mr Stonebowl Pty Ltd financial statements for the year ended 30 June 2022.

    ATTACHMENT C 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.

    (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

    (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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or 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.