Mz Markt Pty Ltd (Migration)

[2021] AATA 1657

Mz Markt Pty Ltd (Migration) [2021] AATA 1657 (30 March 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mz Markt Pty Ltd

CASE NUMBER:  1815754

DIBP REFERENCE(S):  BCC2017/4502769

MEMBER:Danielle Galvin

DATE OF DECISION:  30 March 2021

DATE CORRIGENDUM

SIGNED:20 April 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The authorised representative for the applicant, Ms Zafiroula Souvlakis, attended the hearing in this matter on 23 February 2021.

Danielle Galvin
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mz Markt Pty Ltd

CASE NUMBER:  1815754

HOME AFFAIRS REFERENCE(S):          BCC2017/4502769

MEMBER:Danielle Galvin

DATE:30 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 30 March 2021 at 11:11am

CATCHWORDS

MIGRATION – nomination of a position – position of Chef – genuine position – seasonal Japanese cooking in a café setting – large increase in business – cultural expertise of the nominee – terms and conditions of employment – exemption from labour market testing – 3 years relevant experience – decision under review set aside        

LEGISLATION

Fair Work Act 2009
Migration Act 1958, ss 140, 245
Migration Regulations 1994, Schedule 2 cl 457.223; rr 1.13, 2.57, 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 May 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant, MZ MARKT PTY LTD, trading as CIBI (ABN 78911411312) applied for approval on 28 November 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA. The nominated position was that of chef (ANZSCO 351311), the nominee being Tomohiko Kameyama, one of the owner’s of the applicant business.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy R.2.72(10)(f) of the regulations because based on the information before them the delegate was not satisfied that the position associated with the nominated occupation was genuine. The delegate found, based upon the evidence before them, that the nominated position was not consistent with the nature of the business operated by the applicant. The delegated was not in receipt of information demonstrating the scale of the business operation, the level of business activity or the circumstances that lead to the position becoming available (whether the position was newly created or had been previously occupied). They concluded that there was insufficient evidence to demonstrate that there would be sufficient relevant work for an additional full time chef or that the majority of tasks of the position would be commensurate with those of a chef as described in the ANZSCO tasks description for that role.

4. The Tribunal received the following documents which were on the Department file:

   ·The application dated 28/11/17- stating that the turnover for the applicant in the preceding 12 months had been $786,803 and that the job title was that of Head Chef and with a job description consistent with ANZSCO. The application states that there are 9 Australian employees and 1 foreign employee. And 1 overseas student. The nominee’s salary is stated to be $54,000;

   ·Organisational chart showing 2 owners, a fulltime manager a head chef, 1 part time floor staff and 4 casual and a full time chef and 2 part time cooks

   ·Employment contract signed and dated 23/11/17

   ·Applicant undated employment add.

5. On 17 November 2020 the Tribunal wrote to the applicant at the address provided for the purposes of the review, requesting updated and current information by 1 December 2020.

6. The applicant’s agent responded by the prescribed date with the following information and documents:

   ·The information describes the applicant as a trustee for a trust- Megzen Trust. The application does not identify the applicant company as acting as trustee. The business is described as serving seasonal Japanese cooking in a café setting with full table service for breakfast and lunch and has been trading for 13 years. The applicant claims that in the financial year of 2019 the business turned over $1,869,779.05 and paid wages of $577,624.72 an extraordinary increase from 2018 where turnover was $856,000.58 and wages were $428,094.13. The salary of the nominee is stated as $56,0962.50 and that the nominee commenced as a full time sous chef on 23/11/17 having worked part time since 1/4/14. There are 2 directors, 1 head chef, 2 part-time chefs, a full time supervisor, a part time waiter and a casual waiter and 7 other foreign employees:

   ·ASIC extract for the applicant (ACN 127454997) as at 30/7/20, the sole director being Zenta Tanaka;

   ·Megzen Trust Deed identifying MZ MARKT PTY LTD as the trustee, undated but signed;

   ·Draft BAS for the Trust for 1/6/20-30/6/20 noting sales as $159,973 and wages as $50,266;

   ·Draft tax return for the trust FYE 2019 claiming income as $2,082,226 and wages as $577,625;

   ·Financial statements of applicant as trustee FYE 30/6/19 claiming income as $1,869,779.05 and wages as $577,624.72;

   ·Draft tax return of trust FYE 2018 claiming income as $1,040,418 and wages as $428,094;

   ·Draft financial statements for the applicant as trustee FYE 2018 claiming income as $856,000.58 and wages as $428,094.13;

   ·Draft BAS of the trust for 1/12/19-31/12/19 claiming sales as $392,004 and wages as $55,178, 1/1/20-31/1/20 claiming sales as $238,480 and wages as $50,560;

   ·Employment contract between the applicant trading as CIBI and the nominee attaching letter of offer dated 25/10/20 on a salary of $56,062.50 signed and dated 27/10/20;

   ·Letter of engagement dated 25/10/20 to nominee from applicant stating commencement date will be 1/11/20 on, signed by the nominee on 27/10/20;

   ·Position description for “Chef and Kitchen supervisor”;

   ·Self generated payslip from trust to nominee stating salary as $56,062.50;

   ·Draft PAYG for nominee stating gross payments of $39789;

   ·Organisational chart showing 2 directors;

   ·Example INDEED adds and Payscale rates;

7. The applicant appeared before the Tribunal by telephone on 23 February 2021 to give evidence and present arguments. The applicant was represented by Mr Tanaka, the sole director of the applicant.  

8. Due to the COVID-19 pandemic the Tribunal conducted the hearing by way of teleconference. No objection was made to the matter proceeding in this way.

9. The applicant was represented in relation to the review by its registered migration agent, however, the agent did not appear at the hearing.

10. At the hearing Mr Tanaka stated that the business started in 2008 but that in 2017 to 2018 the business changed premises and was expanding. He stated that the nominee had worked for the business since 2014, originally whilst on a holiday visa, but decided to study and remained employed by the applicant. According to Mr Tanaka the nominee received a Certificate III in 2017 in cooking and performed his 3-month placement with the applicant and has remained as a chef ever since. He described the nominee as integral to the business which has expanded so that there are now 3 chefs and many more staff. The tasks described by Mr Tanaka which the nominee performs are consistent with those listed in the ANZSCO Code for a chef. Mr Tanaka stated that he and his wife effectively run the business and given its nature, serving Japanese cuisine, required the service of the nominee for his particular sensibility to their product. 

11. The Tribunal allowed the applicant time in which to make further written submissions and provide further documents in support of the application for review.

12. On 16 March 2021 the applicant provided to the Tribunal the following documents:

    ·Submission dated 12/3/21 from the applicant’s agent;

    ·Financial statements of the applicant as trustee for Megzen Trust

    - FYE 30/6/18 showing income for 2018 as $856,000.58 and wages as $428,094.13 and that the applicant suffered a loss of $481.56;

    -FYE 30/6/19 showing income for 2019 as $1,869,779.05;

    -FYE 30/6/17 showing income as $809,162.39 and wages as $328,255.41

    ·Bundle photo’s of restaurant;

    ·Extracts of deed establishing Megzen Trust dated and signed 1/10/07;

    ·CIBI team structure document-stating that there are 3 full time chefs including the nominee, 2 part time chefs, 1 dishwasher, 1 café manager, 1 supervisor5 part time front of house employees and 4 casual front of house employees, 1 part time retail employee, 1 full time retail assistant and 1 part time retail assistant;

    ·Organisational chart showing a business owner and the director as managing director under which the 3 chefs operate;

    ·Position statement and genuine need statement describing the increase in business and need for the cultural expertise of the nominee;

    ·SEEK advertisements for sous chef in Adelaide dated 11/3/21, in western suburbs dated 5/3/21, Gold coast 16/3/21;

    ·Megzen Trust tax return FYE 2018 showing income as $1,040,418, FYE 2109 showing income as $2,082,226, FYE 2017 showing income as $957,708;

    ·PAYG of nominee FYE 2018 showing gross income as $39,789;

    ·nominee’s income statements FYE 2019 showing gross payments as $48,423.25, FYE 2020 showing gross payment of $49,000, FYE 2021 gross payments $35,725;

    ·Broadsheet extract;

    ·PAYSCALE salary range for a sous chef as at 16/3/21 showing median salary as $57K;

    ·Bundle of Applicant’s BAS;

    ·Employment contract between applicant and nominee attaching letter of engagement dated 29/1/21 stating the new contract commences on 1/2/21 on a full time basis, on a salary of $57,044 per annum plus super, with no probation period signed and dated 30/1/21;

    ·Open letter from applicant’s accountants, Inside Running, confirming attached financial documents;

    ·Employee payment summaries;

    ·Nominee’s certification and qualifications;

    ·ASIC company extract for applicant as at 30/7/20 ;

    ·Bundle of CIBI documents.

13. 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

14. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

    The nomination must comply with the prescribed process

15. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.

16. The Tribunal is satisfied from reviewing the documents on the file that:

    ·The applicant nominated an occupation under s.140GB(1)(b). being a chef, and therefore meets r.2.73(1A)(a);

    ·The applicant identified the nominee. Tomohiko Kameyama, the proposed holder of a subclass 457 visa, as the person who will work in the occupation and therefore meets r.2.73(1A)(b);

    ·The nomination was made using the approved form and fee and therefore meets r.2.73(2), (3), (5) & (9);

    ·The applicant has identified the nominee in the nomination and therefore meets r.2.73(4)/(4A) and r.2.72(5);

    ·The applicant has provided the certification as to whether or not the person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act and therefore meets r.2.73(4B); and

    ·The nomination includes the location at which the occupation will be carried out, and the name and 6 digit ANZSCO code (351311) for the occupation of chef and therefore meets r.2.72(4).

17. For these reasons the requirements of r.2.72(3) are met.

    Nominator is a standard business sponsor or party to a work agreement

18. Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.

19. The applicant has provided information, which is confirmed by Departmental records, that it is an approved standard business sponsor.

20. For these reasons the requirements of r.2.72(4) are met.

    Identification of the nominee

21. Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

22. As noted above, the Tribunal is satisfied that the applicant identified the nominee as the proposed applicant for the visa, who will work in the nominated occupation, in its nomination application.

23. For these reasons the requirements of r.2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

24. The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:

    ·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);

    ·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);

    ·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and

    ·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).

25. As the Department records indicate that the nominee is not and has not been the holder of a subclass 457 visa, the Tribunal finds that the requirements of r.2.72(6), (7A) and (10)(g) do not apply in this case.

    Information about the nominated occupation

26. Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

    ·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;

    ·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

    ·the location at which the nominated occupation is to be carried out.

27. The Tribunal is satisfied that the applicant is an approved standard business sponsor, its nomination included the 6 digit ANZSCO code for the nominated occupation, Chef, and specified that the location at which the occupation was to be carried out was Collingwood in the State of Victoria 3066.

28. For these reasons the requirements of r.2.72(8A) are met.

    Certification relating to conduct under s.245AR(1)

29. Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.

30. The Tribunal finds, based on the online application form to the Department, that the applicant certified these matters as part of completing the application.

31. For these reasons the requirements of r.2.72(8B) are met.

    No adverse information known to Immigration

32. Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

33. Having reviewed the documents before the Tribunal, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration Department or the Tribunal about the applicant or any person associated with it.

34. For these reasons the requirements of r.2.72(9) are met.

    Specified occupation

35. Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

36. Further, IMMI 17/060 includes the occupation Chef on the medium to long term strategic Occupations list of that instrument and the exclusionary notes are not relevant in this instance.

37. The ANZSCO Code for the position of chef lists the tasks to be performed as including 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, demonstrating techniques and advising on cooking processes, preparing and cooking food, explaining and enforcing hygiene regulations, may select and train staff, may freeze and preserve food.

38. The position description provided details the tasks to be performed by the nominee and accord with the majority of tasks expected of an employee in the nominated role including development of menus, record and maintain pricing data, ensure compliance with the food hygiene management system, ensure that the culinary team  is trained and assessed and, according to Mr Tanaka, prepare food given the nominee’s particular expertise.

39. The Tribunal is satisfied that having regard to the position description provided by the applicant, that the tasks largely correspond to those listed in the ANZSCO dictionary occupational description for a chef.

40. For these reasons the requirements of r.2.72(10)(aa) are met.

    Terms and conditions of employment

41. Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.

42. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

1. In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).

2. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10AB).

3. Based on the information before it, the Tribunal, finds that the nominee’s proposed annual earnings consist of a base salary of $56,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.

4. The Tribunal is satisfied that the documentary evidence provided by the applicant, and its agent on its behalf, establishes that there are no Australian citizen or permanent resident performing equivalent work at the same location.

5. Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an Australian employee by a method specified in instrument IMMI09/113. The Tribunal has referred to the information provided by the applicant from PAYSCALE to confirm the expected salary range for the role of chef and is satisfied that the salary package attached to the nomination is within the salary range for the nominated occupation. Accordingly, the Tribunal is satisfied that the nominee’s salary is no less favourable than those that would be offered to the relevant Australian equivalent.

6. For these reasons the requirements of r.2.72(10)(c) are met.

   Base rate of pay

7. Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 (currently $53,000).

8. However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.

9. Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): r.2.72(10AB).

10. For the reasons set out above the Tribunal is satisfied that the base rate of pay under the terms and conditions of employment that would be provided to an Australian citizen or permanent resident will be greater than the TSMIT.

11. For these reasons the requirements of r.2.72(10)(cc) are met.

    Certification under r.2.72(10)(e)

12. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060;

    ·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant written instrument;

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant written instrument; and

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 17/060.

13. The certification provided by the applicant was in writing for the purposes of r.2.72(10)(e). Consequently, the Tribunal is satisfied that the applicant certified the above matters.

14. For these reasons the requirements of r.2.72(10)(e) are met.

    Position must be genuine

15. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

16. From the oral and documentary evidence provided to the Tribunal, the duties of the nominee, when compared with the list of tasks in the ANZSCO code for the occupation of chef, are consistent. The financial documents provided show that the business is succeeding and growing. The evidence of Mr Tanaka was that the particular cultural knowledge of the nominee, being Japanese, was part of the reason for their employment. The evidence of Mr Tanaka detailed the particular cultural knowledge of the nominee in relation to the food served. The photographs provided show that the restaurant provides table service with the kitchen exposed so that the food preparation appears visible to the customers. The Tribunal is satisfied that the provision of further and better information supports the application, such information not having been available to the delegate.

17. For these reasons the requirements of r.2.72(10)(f) are met.

    Employment under contract

18. Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in a written instrument.

19. The Tribunal is satisfied that the applicant provided an employment contract earlier this year indicating that the nominee’s salary will be $56,000 plus superannuation

20. For these reasons the requirements of r.2.72(10)(h) are met.

    Work agreements

21. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.

22. As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.

    Labour Market Testing

23. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

24. 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 IMMI 13/136. In addition:

    ·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

    ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

25. 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.

26. The nominated occupation of sous chef is a skill level 2 occupation and is therefore prescribed as exempt for the purposes of s.140GB (3)(b) of the Act by IMMI13/137. However, IMMI13/137 requires that to be exempt the nominated occupation must be both specified in the instrument and satisfy the requirements of s.140GBC(3)(a). That provision requires that the nominee must either have (i) a relevant associate advanced diploma or a diploma covered by the AQF or (ii) 3 or more years of relevant experience .As the nominee has had more than 3 years experience with the applicant, being first employed in 2017, s.140GBC (3)(a)(ii) is met.

27. The Tribunal is satisfied that the nominated occupation of sous chef is a skill level 2 occupation and that the nominee has had more than 3 years relevant experience and the applicant is therefore exempt from Labour market testing under IMMI 13/137.

28. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

    DECISION

29. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

    Danielle Galvin
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    2.72 Criteria for approval of nomination — Subclass 457…

    (1)This regulation applies to a person who is:

    (a)is any of the following:

    (i) a standard business sponsor;

    (ii) a person who has applied to be a standard business sponsor;

    (iii) a party to a work agreement (other than a Minister);

    (iv) a party to negotiations to a work agreement (other than a Minister); and

    (b)a party to a work agreement (other than a Minister);

    who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

    (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that the person is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister).

    (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

    (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

    (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

    (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

    (7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (7A)In addition to subregulation (6):

    (a)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

    (b)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

    (iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

    (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

    (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

    (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

    (b)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a standard business sponsor;

    the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

    (c)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a party to a work agreement;

    the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (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.