Om Roadhouse Pty Ltd (Migration)

Om Roadhouse Pty Ltd (Migration) [2023] AATA 4307 (20 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Om Roadhouse Pty Ltd
REPRESENTATIVE:  Mr Gurpreet Singh (MARN: 0853129)
CASE NUMBER:  2004260
HOME AFFAIRS REFERENCE(S):         BCC2020/177630
MEMBER:Alison Mercer
DATE:20 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 20 November 2023 at 4:15pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Cook – specified occupation – IMMI 19/048 – inapplicability condition – limited service restaurant – Departmental policy – menu – staffing levels and designation – lack of a liquor licence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 360
Migration Regulations 1994 (Cth), rr 2.72, 2.73

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 February 2020 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, Om Roadhouse Pty Ltd (trading as Shining India), applied for approval of its nominated position of Cook on 26 January 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. In this case, the occupation is nominated for a subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(8) because the delegate was not satisfied that the nominated position met the applicable occupational caveats, which included the requirement that the position was not based in a limited service restaurant. The delegate found that the applicant operated a roadside restaurant next to a petrol station, and that although the applicant claimed to have an extensive menu, the actual menu provided indicated it largely offered fast food, with limited (or no) seating, limited service and no Chefs listed in its organisational structure chart.
The Tribunal received a review application on 3 March 2020. The review application was lodged on behalf of the applicant by its director, Ms Parul Mehla, and was accompanied by a copy of the delegate’s decision, and an authority by which Ms Mehla appointed a registered migration agent, Mr Gurpreet Singh, as the applicant’s representative and authorised recipient for correspondence.
On 13 July 2023, the Tribunal wrote to Ms Mehla via the agent to invite her, pursuant to s.359(2) of the Act, to provide updated and current information demonstrating that the applicant met all of the applicable criteria in r.2.72 (not merely the criterion that the delegate found was not met). The Tribunal advised Ms Mehla that if the Tribunal did not receive the requested information (or a request for an extension of time to do so) by 27 July 2023, then the applicant would lose its entitlement to have a person attend a hearing on its behalf, and the Tribunal might proceed to make its decision on the available evidence without taking further steps to obtain the requested information.
On 28 July 2023, the Tribunal received the following from the applicant’s agent:
·copy of the Department’s approval of the applicant as a Standard Business Sponsor SBS), 2019;
·ASIC and ABN registration information for the applicant; and
·request for an extension of time to provide additional documentation.
On the same date, the Tribunal advised the applicant and its agent as follows:
...
In our letter of 13 July 2023, we invited you to provide information by 27 July 2023, and advised that any request for an extension of time to provide the information must also be received by 27 July 2023. We did not receive your request for an extension of time until 28 July 2023.
We also advised that if we did not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information, and you would lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. As you did not provide the information or request an extension of time to provide the information by 27 July 2023, you appear to have lost your right to a hearing, however, this will need to be determined by the Member who is constituted your matter.
If the Member determines that you have lost your right to a hearing, the Tribunal may make a decision on the review and will have regard to all the information that is before it at the time the decision is made. If you wish to provide the information and any other material in support of your review, you should do so by no later than 11 August 2023. The Tribunal may proceed to decision at any time after 11 August 2023.
…
On 21 August 2023, the Tribunal received the following submissions and documents from the applicant’s agent:
…
I am writing to you on behalf of OM ROADHOUSE PTY LTD (hereinafter referred to as "the applicant") regarding the review of the nomination application for the Temporary Skill Shortage (subclass 482) visa. We sincerely appreciate the opportunity to provide additional information to the Administrative Appeals Tribunal (AAT) concerning this matter. In the last response, we requested for the additional timeframe as the employer was waiting for the financials and other relevant information from their accountant. We have been diligently working to gather and submit all the relevant financials and related documents to support the case. We apologies [sic] for any inconvenience caused.
Introduction:
OM ROADHOUSE PTY LTD, trading as Metro Petroleum in Jurien Bay, WA, operates as a 24-hour service station and roadhouse, offering freshly cooked food for breakfast, lunch, and dinner.
Mrs. Parul MEHLA is the director of the company, OM ROADHOUSE PTY LTD.
On 26 January 2020, the applicant, OM ROADHOUSE PTY LTD., applied for the nomination application for the Temporary Skill Shortage (subclass 482) visa. The nominated position for the Temporary Skill Shortage visa is that of a Cook, held by the nominee, Mr Vishu Arora.
On 13 February 2020, the delegate of the Minister refused the nomination application.
With regards to the requested information, we would like to confirm that the following information has been provided in response to your request:
1. Information about Company and Business Registration
1.1 Historical Extract from the Australian Securities and Investment Commission (ASIC)
1.2 Extract from the Australian Business Register (abr.business.gov.au)
1.3 Certificate of Business Registration
2. Information about Current Approval as a Standard Business Sponsor
On 18 November 2019, the applicant has got approval as a Standard Business Sponsor (SBS) which is effective until 18 November 2024.
Record of Approval as a Standard Business Sponsor
3. Business Financial Position for at least the last two financial years
3.1. Income Tax Returns for the year 2022
3.2. Income Tax Returns for the year 2023
3.3. Profit and Loss Statements for the Year 2022
3.4. Profit and Loss Statements for the Year 2023
3.5. Four recent Business Activity Statements (BAS) for the 2023 financial year
4. Organisational Chart
A copy of the organisation chart is provided.
5. Roles and Duties for the Nominated Occupation of Cook
The duties and tasks of the nominated position Cook are closely aligned with those mentioned in the Australian and New Zealand Standard Classifications of Occupations (ANZSCO) dictionary, and the position is consistent with the nature of the business.
Position Description - The duties listed show a range of responsibilities that a Cook typically performs. It involves not only food preparation and cooking but also aspects like food quality assurance, compliance with safety regulations, training, and supervisory roles.
5.1. Comparing the roles and duties of the Cook occupation as per ANZSCO:
The duties listed show a range of responsibilities that the nominee performs along with the duties and responsibilities as per ANZSCO. It involves not only food preparation and cooking but also aspects like food quality assurance, compliance with safety regulations, training, and supervisory roles.

Tasks as per ANZSCO

Tasks performed by the nominee

Examining foodstuffs to ensure quality

Examines and inspect food quality (Duty 1 in Position Description)

Monitor and taste the food during the preparation and ensure correct proportion of the ingredients are used (Duty 10)

Regulating temperatures of ovens, grills and other cooking equipment

Prepare food using commercial ovens, tandoori ovens, stoves, steamers, fryers and grills (Duty no. 8)

Follow food safety and hygiene guidelines to ensure food quality and correct storage (Duty no. 7)

Preparing and cooking food

Responsible for food preparation according to recipes or personal dietary requirement (Duty No. 3)

Seasoning food while cooking

Marinate and season uncooked meat, poultry and seafood prior to cooking (No. 9)

Portioning food, placing it on plates, and adding gravies, sauces and garnishes

Apportion food into serving portions, garnish and plate up before service (no. 15)

Storing food in temperature controlled facilities

Ensuring food is correctly stored at correct temperature and in accordance with Occupational health and safety (OHS) (No. 15)

Preparing food to meet special dietary requirements

Responsible for food preparation according to recipes or personal dietary requirement (Duty No. 3)

May plan menus and estimate food requirements

Involved in estimation of food requirements

May train other kitchen staff and apprentices

Supervise kitchen activities and provide training and guidance to junior cooks/trainees and kitchen hands in cooking procedures and techniques (Duty No. 13)

6. Why the condition does not apply
In the nomination application, the applicant specified the nominated occupation to be Cook - 351411. The relevant legislative instrument (IMMI 19/048) specifies that the nominated position is not applicable where:
• The position is involved in mass production in a factory setting
• The position is in a limited service restaurant
We wish to emphasize that the business involves the preparation and serving of freshly cooked meals throughout the day, encompassing breakfast, lunch, and dinner services.
Consistent Need for a Cook
The business operates in a manner that demands a consistent need for the position of a Cook. While the business does offer ready-to-eat options for customers seeking expediency, it is important to note that the business primary focus is on providing freshly cooked meals. Orders are prepared on demand, ensuring that customers receive meals of the highest quality and taste. Copy of the food menu is provided for reference.
Diverse Customer Base
The business cater to a diverse customer base, including individuals who visit the business for dine-in experiences during weekdays and weekends. This attests to the fact that the establishment is not merely a limited service restaurant, but rather a vibrant food hub that addresses the varying preferences of the patrons. The need for a skilled Cook is evident from the customers' consistent demand for a wide array of freshly prepared dishes.
Significance of the Cook Position
We would like to highlight the contribution of Cook, who has been with the business since March 2019. The nominee's role extends beyond routine cooking; he play a pivotal role in maintaining the stability and success of the business. The nominee’s expertise and dedication are reflected in the quality of meals and the satisfaction of customers.
Given the facts presented, I earnestly request a reconsideration of the condition that the nominated Cook position is not involved in mass production or limited service.
The business situation is unique, where the essence of the business revolves around freshly cooked meals, adapting to the changing landscape of food service.
7. Annual Market Salary Rate
At the time of the nomination application in January 2020, the nominee's salary of $54,000 plus superannuation reflected the annual market salary rate for the nominated occupation.
The nominee holds formal qualifications of Certificate IV in Commercial Cookery and Diploma of Hospitality Management from Australia and had more than two (2) years of work experience at the time of nomination application.
Market Survey in January 2020
per Indeed recruitment agency survey, the average salary for a Cook was $54,903 per year in the year 2020 in Australia.
as shown in pay scale, Indeed recruitment survey and position advertised on seek, the average salary of a Cook varied between AUD $50,000 - AUD $60,000 per annum.
Now in the year 2023, the nominee has more than five years of work experience in the nominated position. The market salary of the nominee has been reviewed and increased as per the recent employment contract. Copy of the recent employment contract will be provided once received.
8. Current and Previous Visa Status of the Nominee

The nominee currently holds a Bridging visa A linked to the Temporary Skilled (Subclass 482) visa application. The nominee's past visa history includes Visitor (subclass 600) visa , Student (subclass 500) visa, and Temporary Graduate (subclass 485) visa.
9. Labour Market Testing
The applicant has made efforts to recruit a full-time Cook included advertisements on national recruitment websites such as Job Active and Indeed in December 2019.
Unfortunately, due to business regional location, attracting qualified Australian applicants willing to work full-time has been challenging. Job advertisements were active for more than 28 days and yielded no suitable candidates except the nominee’s applicant who had the relevant skills and experience.
Please refer to the advertisement at the time of the nomination application.
Conclusion
I am writing to provide a comprehensive explanation regarding the employment of the nominee and the genuine need for the Cook position within the business. It is essential to note that there was no contractual obligation on the applicant to retain the nominee's employment if the position of Cook was no longer required within the business operations. Despite the refusal of nomination application, the applicant has consistently employed the nominee in the capacity of a Cook for the past three and half years. This duration of employment demonstrates the genuine commitment to maintaining the Cook position, which has been crucial to the business operations.
During this period, the business has consistently required the services of a Cook due to the nature of their menu offerings. The menu includes a variety of Indian Curries and various types of breads (naan’s), which require specialized skills and expertise to prepare. The experience and expertise of the Cook are essential for creating the authentic flavours and culinary experiences that the customers expect from the establishment. Without the expertise of a skilled Cook, the business would be unable to deliver the high-quality dishes for their customers.
It is important to acknowledge that the business faced significant challenges during the global pandemic, resulting in a financial loss in the 2022 financial year. Despite these challenges, the applicant made the conscious decision to retain the employment of the nominee as a Cook. This decision was not merely a business strategy, but a testament to the commitment to sustaining business operations during tough times and working towards recovery. The Cook's role played a critical part in keeping the business afloat.
The applicant has managed to recover from the losses and achieve profitability in the 2023 financial year. This successful recovery further emphasizes the essential role the Cook position has played in the business's success.
We wish to bring to your attention that the business is located in a regional area (2 hours north of Perth) where the demand for skilled workers is high. Despite the challenges posed by the COVID-19 pandemic, the applicant has consistently experienced a shortage of skilled workers, including cooks. The applicant business operates in the context of serving freshly cooked meals, and the position of a cook is vital to their business operations. The nominee has been employed with the business since March 2019 and has played a pivotal role in our business's stability and success.
In conclusion, I wish to underline that the applicant’s decision to retain the Cook position has been driven by a genuine and consistent need within the business operations. The menu offerings, which include a variety of Indian Curries and specialized breads (naan’s), require the expertise of a skilled Cook.
We hope this explanation clarifies the genuine necessity for the Cook position within the business and showcases business dedication to maintaining the role despite challenges. We kindly request the your consideration of the provided information and the unique circumstances of the applicant’s business location, the critical role of the Cook position, and the genuine need for the nominee's services. We firmly believe that granting the nomination application will contribute to our business's success and the economic development of the regional area.
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For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF LAW, 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 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.
The Tribunal is satisfied from its review of the Department’s file that:
·the applicant is nominating an occupation under s.140GB(1)(b) in relation to a proposed applicant for a subclass 482 visa, as per r.2.73(1);
·the nomination was made using the approved form and fee, as per r.2.73(3),(4) and (5);
·the nomination was accompanied by the applicable training contribution charge, as per r.2.73(5A) as it was lodged after 12 August 2018;
·the nomination was made in the Short term stream as the nominated occupation of Cook is a short term strategic skills specified occupation in the relevant instrument, IMMI 18/048, as pe r.2.73(6);
·the applicant identified the nominee, Mr Vishu Arora, as per r.2.73(8);
·the nomination included the name of the occupation and the corresponding 6 digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nomination, as per r.2.73(9);
·the nomination included written certification that the applicant had not engaged in conduct that contravenes s.245AR(1) of the Act: r.2.73(12);
·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per r.2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(14).

For these reasons, the Tribunal is satisfied that the requirements of r.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.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there
is no evidence to indicate that there is anything adverse that is known to the Immigration (or
the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is satisfied that the requirements of r.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.
The applicant has provided information, which is confirmed by the Department’s records, that the applicant is an approved standard business sponsor. The approval ceases on 18 November 2024.
Accordingly, the Tribunal finds that the requirements of r.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 evidence that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge. As discussed below, the Tribunal is satisfied that the applicant is not liable to pay a nomination training contribution charge.
For these reasons, the Tribunal finds that the requirements of r.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 Tribunal has reviewed the Department’s records and is satisfied that the nominee has held a bridging visa A granted to him on 26 January 2020. As he did not hold a subclass 457 or subclass 482 visa at the time the nomination was lodged, the applicant is not required to meet the dot points above.
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
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 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal has reviewed IMMI 19/048 and is satisfied that the nominated occupation of Cook (ANZSCO code 351411) is included, and is subject to notes 7 and 8 of the instrument. These provide that a nominated position of Cook cannot be approved if:
·the position is involved in mass production in a factory setting (note 7); or
·the position is in a limited service restaurant (note 8).
The definitions section of the instrument defines a ‘limited service restaurant’ as follows:
(a) a fast food or takeaway food service;
(b) a fast casual restaurant;
(c) a drinking establishment that offers only a limited food service;
(d) a limited service cafe, including a coffee shop or mall cafe;
(e) a limited service pizza restaurant.
In the applicant’s submissions to the Tribunal, the following arguments were made as to why the applicant’s business should not be regarded as a limited service restaurant:
…
We wish to emphasize that the business involves the preparation and serving of freshly cooked meals throughout the day, encompassing breakfast, lunch, and dinner services.
Consistent Need for a Cook
The business operates in a manner that demands a consistent need for the position of a Cook. While the business does offer ready-to-eat options for customers seeking expediency, it is important to note that the business primary focus is on providing freshly cooked meals. Orders are prepared on demand, ensuring that customers receive meals of the highest quality and taste. Copy of the food menu is provided for reference.
Diverse Customer Base
The business cater to a diverse customer base, including individuals who visit the business for dine-in experiences during weekdays and weekends. This attests to the fact that the establishment is not merely a limited service restaurant, but rather a vibrant food hub that addresses the varying preferences of the patrons. The need for a skilled Cook is evident from the customers' consistent demand for a wide array of freshly prepared dishes.
Significance of the Cook Position
We would like to highlight the contribution of Cook, who has been with the business since March 2019. The nominee's role extends beyond routine cooking; he play a pivotal role in maintaining the stability and success of the business. The nominee’s expertise and dedication are reflected in the quality of meals and the satisfaction of customers.
Given the facts presented, I earnestly request a reconsideration of the condition that the nominated Cook position is not involved in mass production or limited service.
The business situation is unique, where the essence of the business revolves around freshly cooked meals, adapting to the changing landscape of food service.
…
The information provided to the Department in January 2020 indicates that (at that time):
·the applicant’s restaurant, Shining India, operated under the auspices of the Om Roadhouse in Jurien Bay in regional Western Australia;
·the restaurant had a Restaurant Manager, a Chef, 2 Cooks (not including the nominee) and 2 front of house staff,
·the Roadhouse itself had an Administrative Manager, a Cook (the nominee), an Assistant Cook, a Kitchen Hand/Front of House, Front Counter wait staff x 2 and wait staff (general);
·the Om Roadhouse menu listed (as main meals) burgers (7 different types), kebabs (4 different types), meat boxes (3 different types), salads x 2, and seafood (4 different variations). There was also a section of the menu offering Indian food, including 8 entrees, 9 x vegetarian main meals, 7 meat (lamb, beef or goat) dishes (mainly curries), 5 fish dishes (mainly curries), various rice/noodle dishes, various naan and roti breads and sweets. It also offered fast food (chips, spring rolls, chiko rolls, sausages, nuggets, soft drink). There was a limited breakfast menu of eggs on toast or a choice of 2 omelettes. It was stated that home delivery was available within a 10km radius, and that catering was also available for big or small functions. No alcohol was served but coffee and soft drinks were available; and
·the applicant received approval on 28 October 2019 from the Shire of Dandaragan for a proposed change of land use for its convenience store to a Road House, including restaurant facilities limited to 4 tables and 16 chairs.
Photos provided show a small internal space with 4 tables each with 4 chairs, with a service/order counter, what appears to be a bain marie display of take away hot food, and a refrigerated display of take away food. This space is contained within the Roadhouse convenience store. Photos of a small kitchen behind this space were also provided.
The Department’s Procedural Advice Manual (PAM3, latest version 27 October 2023) provides the following guidance on limited service restaurants:
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3.7.1. Definitions
3.7.1.1 What is a fast food or takeaway service?
Under policy, fast food or take away food is defined as food that is quick to cook or is already cooked and as a result can be served as a quick meal or to be taken away – i.e. "a meal to go".
Such food is to be distinguished from a restaurant or café where people sit and eat meals that are cooked and served on the premises, pay on completion of the meal and with the service provided being an important factor, as well as the food.
Examples of eating establishments considered under policy to provide fast food or takeaway services may include, but are not limited to, fast food chains, fish and chips shops, hamburger shops, kebab shops, takeaway sushi shops, Asian noodle take away shops and fried chicken shops.
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.
3.7.1.2 What is a fast casual restaurant?
Fast casual restaurants, sometimes also referred to as fast casual dining outlets, are similar to fast food outlets except the quality of the food and prices of the menu are somewhat higher and they may have a liquor licence.
These restaurants are designed to offer the quality of established restaurants with the informality of fast food stores and speedier service than a full service restaurant. Typically, these outlets:
·     do not provide full table service, with customers ordering their food at a counter even if it is delivered to the table;
·     operate in chains or as franchises and are heavily advertised;
·     offer streamlined menus similar to fast food establishments;
·     offer speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;
·     do not generally employ chefs – with some menu items still mass-produced, even if they are made from better quality and fresh ingredients,
·     cater for special dietary needs unlike fast food establishments; and
·     do not have a drive through facility.
Examples of eating establishments that are considered to be fast casual restaurants may include, but are not limited to fast casual dining franchises which focus on serving a 'gourmet' or 'organic' version of fast food (e.g. burgers, fried chicken, fish and chips, sandwiches) or food from a particular country (e.g. Mexican, Greek, Italian or Japanese).
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.

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3.7.2. Distinguishing between full service and limited service cafés/restaurants
The sections below are designed to assist officers to determine whether the nominee will be based in a restaurant or café, or in one of the locations that is specifically excluded via a caveat on the occupation listed in the relevant legislative instrument.
Officers will need to make an assessment as to the location of the nominated position, based on the individual circumstances of the case and taking into account all the material available in relation to how the business actually operates. The factors outlined below are considered critical in terms of distinguishing between full service and limited service café/restaurants.
Note:
·     The key factors are the way in which the food is ordered, served and consumed, not the quality of the food.
·     If a food service business operates through a chain or franchise arrangement, it is possible that some outlets will be fast food or takeaway businesses while others are cafes or restaurants. It is therefore important for officers to assess this issue on a case by case basis. In this situation, officers also need to ensure that any supporting evidence provided, relates to the specific outlet that is the subject of the nomination, rather than another premises in the chain.

3.7.2.1. Factors supporting classification as a restaurant or café
Under policy, factors that may be relevant to an assessment that the position is based in a café or restaurant include:
·     how the business is marketed to the public
·     the business is mainly engaged in providing food and beverage serving services for consumption on the premises, even if take away services are available
·     meals are made on-site from raw ingredients, portion size may vary depending on the cut/produce size available, involving substantial preparation (for example, peeling, chopping, de-boning, grating), seasoning and cooking - using a range of equipment and techniques depending on the nature and size of the produce that is being prepared
·     a comprehensive menu is available which incorporates a broader range of ingredients that are delivered fresh to the premises
·     table service is provided – that is customers are seated at restaurant/café tables and provided with assistance while seated as required (i.e. provided with menus, asked for order, provided with additional items/assistance where required and provided with bill)
·     customers pay after eating
·     the business holds a liquor licence and has a comprehensive selection of alcoholic beverages available via table service
·     the menu caters for special dietary requirements and varies from time to time depending on availability of produce, and seasoning
·     if the menu is limited, there is a focus on organic or specialty ingredients that are prepared onsite or 'gourmet products', and/or prices are higher than would be expected at a takeaway establishment
·     the size of portions may also vary from time to time given the human element involved in the preparation and cooking of the items
·     the business has a full commercial kitchen and significant food storage facilities for fresh ingredients
·     the business has had their performance recognised via restaurant industry awards
·     employment at the business has been accepted by TRA as skilled work experience, or by a recognised training institution as sufficient to support study in a Certificate III in Commercial Cookery
·     where a chain, different outlets are designed differently to reflect the local customer base and outlets are largely owned by the company rather than franchisees.

3.7.2.2. Factors supporting classification not as a restaurant or café
Under policy, factors that may be relevant to an assessment that the position is not a restaurant or café (i.e. that it is based in a fast food or take away service, or a fast casual restaurant) include that:
·     the business does not offer full table service
·     the business is a well-known fast food or fast casual restaurant chain
·     the business markets itself as a fast food restaurant or a fast casual restaurant, within significant levels of advertising
·     the business is primarily a coffee shop
·     operate a franchise or restaurant chain, where different outlets are largely identical in design
·     the business offers speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;
·     the business mainly engages in providing food services ready to be taken away for immediate consumption with only limited onsite seating provided (if any)
·     the business offers streamlined or limited menus, with food prepared according to a standardised format or that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).
·     the business does not generally employ chefs – with food still mass-produced even if better quality and fresh ingredients are used than is typical in a fast food context , with special dietary needs often catered for
·     the business does not have a full commercial kitchen – and only has equipment for heating/final preparation of food
·     the business is located in a food hall and food courts that consists of fast food and take away services, as opposed to award winning/high profile restaurants that can now be co-located in some shopping malls
·     customers are required to order at a counter and pay before eating
·     limited seating and/or only communal tables shared with other business is provided
·     meals are served in packaged form and/or there is a focus on 'street food' (i.e. handheld foods)
·     meals are served in disposable containers (although some outlets may provide cutlery and crockery for customers dining in the establishment)
·     reservations are not required or provided for
·     food is distributed from a central location
·     food is apportioned into predetermined quantities and sizes, seasoned to a fixed standard and delivered, pre-packaged, with preparation on-site being limited to thawing, heating and/or basic cooking (e.g. frying or grilling)
·     if heating or cooking is required, cooking times for the items are usually pre-arranged for a set duration, as the time it takes to cook through can be predetermined given the control over portion size that is packaged prior to delivery to each venue
·     employees of the business are covered by the Fast Food Industry Award
·     the business has had their performance recognised via fast food industry awards.
Officers are reminded that the above considerations are for guidance only and are not intended to be an exhaustive list. Officers must consider, on an individual basis, all circumstances of which they are aware, or should be aware, and which are relevant to the determination, and must not apply these factors inflexibly.
The Tribunal notes that Departmental policy is not legally binding on the Tribunal but considers that where it is relevant, and is not more restrictive than the underlying legislation about which it seeks to provide guidance, it is appropriate to have regard to it, as an aid to consistency in decision-making.
The Tribunal has examined the available evidence, noting that the applicant lost its right to a Tribunal hearing due to its failure to respond in time to the Tribunal’s s.359A letter. It considers that there are a number of aspects of the business that suggest that it is a limited service restaurant, while there are others that suggest that it is not.
In particular, the Tribunal notes that the organisational chart provided to the Department indicates that the applicant operates 2 food establishments in Jurien Bay, regional Western Australia, the Shining India restaurant, and the café at the Metro Roadhouse, with the nominee being employed as a Cook since 2019 at the latter. The Tribunal is satisfied that the applicant’s business was granted permission to create a food outlet at the Roadhouse in 2019. The sample menu provided is for the Om Roadhouse (as opposed to the Shining India restaurant). As noted above, the Roadhouse menu features as main meals: burgers (7 different types), kebabs (4 different types), meat boxes (3 different types), salads x 2, and seafood (4 different variations). There is also a section of the menu offering Indian food, including 8 entrees, 9 x vegetarian main meals, 7 meat (lamb, beef or goat) dishes (mainly curries), 5 fish dishes (mainly curries), various rice/noodle dishes, various naan and roti breads and sweets. It also offers fast food (chips, spring rolls, chiko rolls, sausages, nuggets, soft drink). There was a limited breakfast menu of eggs on toast or a choice of 2 omelettes. The premises is not licensed, although tea, coffee and soft drinks are available.
The applicant’s agent submitted that an important part of the nominee’s role as Cook was to prepare the curries and naans and other Indian breads, as part of the Indian section of the Roadhouse menu, and that these dishes indicated that the Roadhouse was not a limited service restaurant. The organisational chart indicates that the nominee is the main Cook, and that there is 1 other assistant Cook, as well as 2 front counter staff, a wait staff person and a kitchen hand. As noted above, the photographs and planning permit provided to the Department indicate that the Roadhouse dining area is small, with only 4 or so tables, a small kitchen, a bainmarie area and a display refrigerator. The predominant impression to the Tribunal is of a small, casual restaurant/café set in a petrol station and roadhouse store, which provides mainly take away or fast food, although it does also offer dine in facilities and a selection of Indian menu items. It does not appear to have table service, as there is what appears to be a service counter in the photos and the organisational chart indicates that there are counter staff (although 1 wait staff person is also listed). However, the Tribunal is satisfied that it is not a full service restaurant, given the menu, staffing levels and designations and its lack of a liquor licence.

On balance, while the Tribunal accepts that the nominee may have played a significant role as the main Cook in this premises since its establishment in 2019, it finds that the café/restaurant itself is a limited service restaurant, having regard to the definitions section in IMMI 19/048, the Departmental policy set out above, and the evidence provided by the applicant.
Accordingly, the Tribunal finds that although the nominated occupation of Cook is listed in IMMI 19/048, the nominated position is excluded from approval as it falls into the caveat relating to limited service restaurants contained in that instrument.
It follows that the Tribunal must find that the requirements of reg 2.72(8) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets all of the applicable criteria for the nomination to be approved. Having found that the applicant does not meet r.2.72(8), it is unnecessary for the Tribunal to consider the remaining r.2.72 criteria.
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Alison Mercer
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)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.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one 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.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2023] AATA 4307

20 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Tasks as per ANZSCO	Tasks performed by the nominee
Examining foodstuffs to ensure quality	Examines and inspect food quality (Duty 1 in Position Description) Monitor and taste the food during the preparation and ensure correct proportion of the ingredients are used (Duty 10)
Regulating temperatures of ovens, grills and other cooking equipment	Prepare food using commercial ovens, tandoori ovens, stoves, steamers, fryers and grills (Duty no. 8) Follow food safety and hygiene guidelines to ensure food quality and correct storage (Duty no. 7)
Preparing and cooking food	Responsible for food preparation according to recipes or personal dietary requirement (Duty No. 3)
Seasoning food while cooking	Marinate and season uncooked meat, poultry and seafood prior to cooking (No. 9)
Portioning food, placing it on plates, and adding gravies, sauces and garnishes	Apportion food into serving portions, garnish and plate up before service (no. 15)
Storing food in temperature controlled facilities	Ensuring food is correctly stored at correct temperature and in accordance with Occupational health and safety (OHS) (No. 15)
Preparing food to meet special dietary requirements	Responsible for food preparation according to recipes or personal dietary requirement (Duty No. 3)
May plan menus and estimate food requirements	Involved in estimation of food requirements
May train other kitchen staff and apprentices	Supervise kitchen activities and provide training and guidance to junior cooks/trainees and kitchen hands in cooking procedures and techniques (Duty No. 13)