Rich Joondalup Pty Ltd (Migration) - [2022] AATA 2163

Rich Joondalup Pty Ltd (Migration) [2022] AATA 2163 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Rich Joondalup Pty Ltd
REPRESENTATIVE:  Ms Nannan Liu (MARN: 0964114)
CASE NUMBER:  1904758
HOME AFFAIRS REFERENCE(S):          BCC2018/6208024
MEMBER:Katie Malyon
DATE:30 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 30 June 2022 at 6:23 pm
CATCHWORDS
MIGRATION – nomination of a position – occupation of Cook – limited-service restaurant – streamline franchise menu – inapplicability condition – labour market testing for specialists inconsistent with an international trade obligation – limited sales via delivery services – extensive and varied a la carte menu including celebratory food items – COVID-19 pandemic restrictions on in-store dining – genuine position – employment conditions no less favourable – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 359
Migration Regulations 1994, Schedule 2, cl 482.223; rr 1.13, 2.57, 2.72, 2.73, 5.42
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Qiao v MIAC [2008] FMCA 380
Re Drake v MIEA (No 2) (1979) 2 ALD 634
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 2019 to refuse to approve a nomination made by Rich Joondalup Pty Ltd T/A PappaRich Joondalup (the Company) under s 140GB of the Migration Act 1958 (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The Company applied for approval on 16 January 2019. A nomination of an occupation for an applicant or proposed applicant of a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated in one of 3 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. Relevant criteria from the Regulations are extracted in Attachment A to this decision. Additional criteria in relation to labour market testing are specified in s 140GBA of the Act and are extracted in Attachment B.
In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream. The Company nominated the occupation of Cook ANZSCO 351411 for its nominee Mr Pawan Pokharel. Mr Pokharel is a national of Nepal.
The delegate decided not to approve the nomination on the basis she formed the view that:
·information provided indicates that the Company is a franchise of PaapaRich (sic) Australia Pty Ltd;
·it offers a streamline menu similar to fast food restaurants;
·the business does not employ a Chef as per the Organisation Chart;
·the PappaRich franchise business model…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Rich Joondalup Pty Ltd (Migration)

Details

AGLC: Rich Joondalup Pty Ltd (Migration) [2022] AATA 2163
Case: [2022] AATA 2163
Decision Date: 30 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a nomination for a Subclass 482 visa. The applicant, Rich Joondalup Pty Ltd, sought to nominate an occupation for a visa holder to work as a Cook at its PappaRich restaurant in Joondalup. The delegate of the Minister had refused to approve the nomination.

The Tribunal was required to determine whether the applicant met the criteria for the approval of the nomination, specifically whether the nominated position of Cook was genuine and whether the employment conditions offered were no less favourable than those provided to Australian citizens or permanent residents performing equivalent work. The Tribunal also considered whether the nominated restaurant was a "limited-service restaurant" which could render the nomination ineligible under certain caveats.

The Tribunal found that the nomination process had been correctly followed and that the applicant was a standard business sponsor. Crucially, the Tribunal considered the definition of a "limited-service restaurant" and the caveats associated with the Cook occupation. It noted that while PappaRich restaurants often have streamlined menus, the specific restaurant in question offered an extensive and varied a la carte menu, including celebratory food items, and was not solely a fast-food or takeaway establishment. The Tribunal also considered the impact of COVID-19 restrictions on in-store dining, which did not alter the fundamental nature of the restaurant's operations. Furthermore, the Tribunal was satisfied that the employment conditions offered were not less favourable than those for Australian workers and that there was no adverse information known to Immigration concerning the applicant.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination. The Tribunal acknowledges that it has significantly more information than that which was available to the delegate.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets all of the relevant requirements in reg 2.72: s 140GB(2) of the Act. The applicant must also have paid any nomination training contribution charge in relation to the nomination for which it is liable. In addition, the labour market testing requirements in s 140GBA of the Act 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 has had regard to the material in the Department’s file and is satisfied that: the nomination was made using the approved online form and was accompanied by the correct fee; the Company nominated an occupation under s 140GB(1)(b) of the Act and it identified, in the nomination, a person who will apply for a Subclass 482 visa and who will work in the occupation, Pawan Pokharel; the Company identified the location where the nominee will carry out the occupation, its PappaRich restaurant in Joondalup; and, it included the name and 6-digit ANZSCO code for the nominated occupation, that is, Cook ANZSCO 351411. The Company’s nomination also contains the required certifications. Therefore, the Tribunal is satisfied reg 2.72A(3) of the Regulations is 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 reg 1.13B of the Regulations. The Tribunal notes that records of the Fair Work Ombudsman (the FWO) confirm that a number of PappaRich franchise operators in Sydney have been issued with heavy fines following underpayment of wages.[2] However, based on its review of ASIC searches of the Company’s directors, its shareholders including its corporate shareholders, the Tribunal is satisfied that none of the natural persons involved in the Company or its associated entities have been the subject of investigation or adverse findings by the FWO.[2] News and Media search - Fair Work Ombudsman Further, the Tribunal has had regard to the Department’s records, including its Integrated Client Services Environment records, and has found no information to indicate that there is any adverse information known to Immigration about the Company or a person associated with the Company. For these reasons, the requirements of reg 2.72(4) are met.Nominator is a standard business sponsor

Decision

Reasons for decision

For the cumulative reasons given above, the Company meets all the applicable criteria for the nomination to be approved.DECISION The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.Katie MalyonMemberATTACHMENT A - Extracts from the Migration Regulations 19942.72 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)…oOOoATTACHMENT B - Extracts from the Migration Act 1958 s.140GB Minister to approve nominations (1) A person who is, or who has applied to be, an approved sponsor, or a person who is a party to negotiations for a work agreement may nominate:(a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:(i) the applicant or proposed applicant’s proposed occupation; or(ii) the program to be undertaken by the applicant or proposed applicant; or(iii) the activity to be carried out by the applicant or proposed applicant; or(b) a proposed occupation, program or activity.(2) The Minister must approve a person’s nomination if:(a) in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC — the labour market testing condition under section 140GBA is satisfied; and(aa) in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination—the person has paid the charge; and(ab) in any case—the person is an approved sponsor; and(b) in any case — the prescribed criteria are satisfied.Note 1: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.Note 2: See section 140ZM for when a person is liable to pay nomination training contribution charge.(3) The regulations may establish a process for the Minister to approve a person’s nomination.(4) Different criteria and different processes may be prescribed for:(a) different kinds of visa (however described); and(b) different classes in relation to which a person may be approved as a sponsor.s.140GBA Labour market testing – condition (1) This section applies to a nomination by a person, under section 140GB, if: (a) the person is, or has applied to be, in a class of approved sponsors prescribed by the regulations; and(b) the person nominates:(i) a proposed occupation for the purposes of paragraph 140GB(1)(b); and(ii) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination; and(c) it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the person to satisfy the labour market testing condition in this section, in relation to the nominated position.(2) For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.Labour market testing condition(3) The labour market testing condition is satisfied if:(a) the Minister is satisfied that the person has undertaken labour market testing in relation to the nominated position within a period determined under subsection (4) in relation to the nominated occupation; and(aa) the labour market testing in relation to the nominated position was undertaken in the manner determined under subsection (5); and(b) the nomination is accompanied by:(i) evidence in relation to that labour market testing of a kind determined under subsection (6A); and(ii) if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the person — information about those redundancies or retrenchments; and(d) having regard to that evidence, and information (if any), the Minister is satisfied that:(i) a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and(ii) a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.(4) For the purposes of paragraph (3)(a), the Minister may, by legislative instrument, determine a period within which labour market testing is required in relation to a nominated occupation. The period must not start earlier than 4 months before the nomination is received by the Minister.(4A)Despite paragraph (3)(a) and subsection (4), if there have been redundancies or retrenchments as mentioned in subparagraph (3)(b)(ii), the labour market testing must be undertaken after those redundancies and retrenchments.Evidence of labour market testing(5) For the purposes of paragraph (3)(aa), the Minister may, by legislative instrument, determine the manner in which labour market testing in relation to a nominated position must be undertaken.(6) Without limiting subsection (5), the Minister may determine the following:(a) the language to be used for any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved sponsor;(b) the method of any such advertising;(c) the period during which any such advertising must occur;(d) the duration of any such advertising.(6AA) The Minister must not make a determination under subsection (5) unless the Minister is reasonably satisfied that any advertising of the position undertaken in the determined manner:(a) will be targeted in such a way that a significant proportion of suitably qualified and experienced Australian citizens or Australian permanent residents would be likely to be informed about the position; and(b) will set out any skills or experience requirements that are appropriate to the position.(6AB) A duration determined for the purposes of paragraph (6)(d) must be at least 4 weeks.(6A) For the purposes of subparagraph (3)(b)(i), the Minister may, by legislative instrument, determine kinds of evidence that must accompany a nomination.(6B) Without limiting subsection (6A), the Minister may determine that a copy of any advertising mentioned in subsection (6) must accompany a nomination.(6C) Without limiting subsection (5) or (6A), the Minister may prescribe different manners or evidence for different nominated positions or classes of nominated positions.Definitions(7) In this section:associated entity has the same meaning as in Part 2A of the regulations.Australian permanent resident means an Australian permanent resident within the meaning of the regulations.eligible temporary visa holder: a person is an eligible temporary visa holder in relation to a nomination by another person if, at the time when the nomination is made:(a) the person is the holder of a temporary visa referred to in the regulations as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and(b) the person is employed in the agricultural sector by the other person (or an associated entity of the approved sponsor); and(c) the temporary visa does not prohibit the person from performing that employment.labour market testing, in relation to a nominated position, means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to fill the position.s.140GBA Labour market testing – major disaster exemptions (1) A person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if an exemption under subsection (2) of this section is in force in relation to the person.(2) The Minister may, in writing, exempt a person from the requirement to satisfy the labour market testing condition in section 140GBA if the Minister is satisfied that:(a) an event (a major disaster) has occurred in Australia, whether naturally or otherwise, that has such a significant impact on individuals that a government response is required; and(b) the exemption is necessary or desirable in order to assist disaster relief or recovery.(3) In deciding whether a major disaster has occurred, the Minister must have regard to matters including the following:(a) the number of individuals affected;(b) the extent to which the nature or extent of the disaster is unusual.(4) An exemption of a person under subsection (2):(a) may be expressed to apply in relation to:(i) a specified nomination by the person; or(ii) a specified class of nominations by the person; and(b) must be expressed to apply to a particular person specified in the exemption rather than a class of persons, despite subsections 33(3A) and (3AB) of the Acts Interpretation Act 1901.(5) An exemption made under subsection (2) is not a legislative instrument.’s.140GBC labour marketing testing – skill and occupational exemptions Scope(1) This section applies to a nomination by a person, under section 140GB, if the person nominates:(a) a proposed occupation for the purposes of paragraph 140GB(1)(b); and(b) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination.Skill and occupational exemptions(2) The person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:(a) either or both of the following are required for the nominated position, in relation to the nominated occupation:(i) a relevant bachelor degree or higher qualification, other than a protected qualification;(ii) 5 years or more of relevant experience, other than protected experience; and(b) the nominated occupation is specified for the purposes of this subsection under subsection (4).(3) The person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:(a) either or both of the following are required for the nominated position, in relation to the nominated occupation:(i) a relevant associate degree, advanced diploma or diploma covered by the AQF, other than a protected qualification;(ii) 3 years or more of relevant experience, other than protected experience; and(b) the nominated occupation is specified for the purposes of this subsection under subsection (4).Legislative instrument(4) The Minister may, by legislative instrument:(a) specify an occupation (or occupations) for the purposes of subsection (2); and(b) specify an occupation (or occupations) for the purposes of subsection (3).(5) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection (4).Definitions(6) In this section: AQF means the Australian Qualifications Framework within the meaning of the Higher Education Support Act 2003. protected experience means experience in the field of engineering (including shipping engineering) or nursing.protected qualification means a qualification (however described) in engineering (including shipping engineering) or nursing.oOOoAttachment C – Extract from PAM in relation to caveats 4.6.1.8. Cooks (ANZSCO 351411) – Conditions 7 & 8Caveats are in place for this occupation which exclude positions involved in mass production in a factory setting and positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, the following:· fast food or takeaway food services;· fast casual restaurants;· drinking establishments that offer only a limited food service;· limited service cafes;· limited service pizza restaurants.For further advice regarding how the above terms are defined, refer to section 4.7 Additional advice on hospitality positions and caveats.This caveat is designed to ensure that in the context of this occupation, employer sponsored skilled visa programs continue to be used for skill level 3 cook positions only – that is, positions in a dining establishment that involve preparing, seasoning and cooking food.It is not appropriate for use by individuals who will actually be undertaking the role of a Fast Food Cook (ANZSCO 851111), Food Trades Assistants NEC (ANZSCO 851299) and Kitchenhands (ANZSCO 851311), or for positions that can be performed with on-the-job training, or without the skills, qualifications or employment background specified in the ANZSCO dictionary.Cooks, unlike Chefs, are less likely to operate independently in planning menus and sourcing produce, and are expected to spend the majority of their time preparing food on a daily basis.If the nominated position is not determined to be in a limited service restaurant or be involved in mass production in a factory setting, further assessment may be warranted if the officer has concerns that a significant amount of the nominee’s time will be spent on routine support tasks in a food service environment (e.g. preparing ingredients, cleaning equipment, delivering food, taking orders, packing food and beverage trays, heating food items), rather than preparing and cooking food in a dining or catering establishment...4.7. Additional advice on hospitality positions and caveatsThere are caveats in place for the occupations of Café or Restaurant Manager, Cook and Chef, which exclude the occupation from employer sponsored visa programs where the position is based in a limited service restaurant.A limited service restaurant, as outlined in the instrument, includes, but is not limited to, the following:· fast food or takeaway food services;· fast casual restaurants;· drinking establishments that offer only a limited food service;· limited service cafes including, but not limited to, coffee shops or mall cafes;· limited service pizza restaurants.Cook and chef positions are also excluded where they are involved in mass production in a factory setting.This section explains how the above terms are defined under policy for the purposes of these caveats.Note: Not related specifically to caveats, additional advice is also provided at the end of this section in terms of the differentiation between Cook and Chef positions.4.7.1. Definitions4.7.1.1 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.4.7.1.2 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 below4.7.1.3 Drinking establishments that offer only a limited food serviceNominations can be received for the occupations of cook, chef and café or restaurant manager where the location is a drinking establishment, such as a pub, a bar, a beer hall or an izakaya.In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant – with some pubs even marketing themselves as ‘gastropubs’Employer sponsored skilled visa programs are not considered appropriate to fill positions in bars/pubs where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.Under policy, a drinking establishment is considered to have a limited food service menu where it only provides snacks (e.g. olives, dips, chips, pickles), or a very limited range of food that involves limited preparation (e.g. toasties, tacos, simple pizza or standard hamburgers).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.4.7.1.4 Limited service cafes including a coffee shop or mall cafeNominations can be received for the occupations of cook, chef and café or restaurant manager where the location is a café. In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve (e.g. coffee, tea, non-alcoholic drinks). In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.Employer sponsored skilled visa programs are not considered appropriate to fill positions in cafés where only a limited food service is provided, such as coffee shops or mall cafes – with such positions generally lesser skilled and considered able to be sourced from the local labour market.Under policy, factors adding weight to a finding that an eating establishment is a limited service café include that the café:· is located in a mall;· is primarily a coffee shop (that is, an establishment that focuses on serving hot beverages such as tea or coffee) ;· have a limited food menu that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).By contrast, full service cafes are likely to have a comprehensive food menu and develop most dishes “from scratch” in a full commercial kitchen.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 below4.7.1.5 Limited service pizza restaurantNominations can be received for the occupations of cook, chef and café or restaurant manager where the location is a pizza restaurant. In some cases, these establishments will provide mainly a take-away pizza service with limited other menu items and/or only limited table services. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.Employer sponsored skilled visa programmes are not considered appropriate to fill positions in pizza restaurants where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.Under policy, factors adding weight to a finding that an eating establishment is a limited service pizza restaurant include that the restaurant:· does not serve non-pizza related items;· has minimal onsite seating, with take-away the main focus of the business;· clients pay at the counter;· clients eat pizza from pizza boxes even if on the premises.By contrast, full service pizza restaurants are likely to have a comprehensive food menu and develop most dishes from scratch in a full commercial kitchen.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.4.7.1.6 What is mass production in a factory settingAn additional caveat applies to the occupations of cook and chef which excludes positions involved in mass production in a factory setting – with such positions generally lesser skilled and considered able to be sourced from the local labour market.Cooks are expected to be involved in preparing and cooking food from scratch rather than, for example, just heating pre-prepared meals, or making basic food stuffs in a factory setting.Under policy, mass production refers to the making of products using assembly line techniques, with workers working on an individual step of the production process. Such production techniques usually also involve the use of tools, machinery and other equipment, usually automated.If a nominated position for a Cook or a Chef is based in a factory setting, officers will need to check whether or not this additional caveat applies.4.7.2. Distinguishing between full service and limited service cafés/restaurantsThe 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.4.7.2.1. Factors supporting classification as a restaurant or caféUnder 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.4.7.2.2. Factors supporting classification not as a restaurant or caféUnder 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. 4.7.3. Distinguishing between cook, chef and kitchen hand positionsIt can be important for officers to determine whether a particular position is in fact a skill Level 2 Chef (ANSZCO 351311) or a skill level 3 Cook (ANZSCO position), particularly in the context of the TSS visa program where different visa stay periods apply.As outlined in ANZSCO, the qualifications and/or experience required for these positions are different. The occupation of Chef requires a diploma or higher qualification, whereas the occupation of cook requires only an AQF Certificate IV or an AQF Certificate III including 2 years of on-the-job training.The tasks that would be undertaken by individuals in these occupations also differ. Tasks for Cooks include:· examining foodstuffs to ensure quality· regulating temperatures of ovens, grills and other cooking equipment· preparing and cooking food· seasoning food during cooking· portioning food, placing it on plates, and adding gravies, sauces and garnishes· storing food in temperature controlled facilities· preparing food to meet special dietary requirements· may plan menus and estimate food requirements· may train other kitchen staff and apprenticesTasks for Chefs include:· planning menus, estimating food and labour costs, and ordering food supplies· monitoring quality of dishes at all stages of preparation and presentation· discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff· demonstrating techniques and advising on cooking procedures· preparing and cooking food· explaining and enforcing hygiene regulations· may select and train staff· may freeze and preserve foodsUnder policy, factors that may be relevant to an assessment that the position is a Chef position include:· the primary role of the position is managing a kitchen, with some limited, specialised cooking tasks;· there is at least one cook that the nominated chef will supervise;· the nominated position is in a restaurant environment;· nominee has a diploma or higher qualification;Under policy, factors that may be relevant to an assessment that the position is a Cook position include:· the organisation only has a single person performing the “cooking” function, the relevant occupation is likely to be that of a cookoThis is because in these circumstances, it is likely that the person will spend most of their time on cooking, rather than managerial tasks. If the employer, believes that a stand-alone cooking role is that of a chef, the onus is on them to provide justification.· Tasks are performed at a lower level of skill e.g. a cook is likely to instruct a kitchen hand on hygiene and preparing ingredients rather than demonstrate how a particular dish is prepared to a group of cooks.Note: officers are also encouraged to take care to ensure that overseas workers are not working in lower skilled positions such as Kitchenhands (ANZSCO 851311) that could be performed by an Australian with secondary education and/or minimal on the job training. Tasks such as the following are not considered appropriate tasks commensurate with the occupation of Cook (351411):· taking orders and receiving payment from clients;· washing, measuring and mixing foods for cooking· arranging delivery of prepared food of beverages· cleaning kitchens, food preparation areas and sculleries· cleaning cooking and general utensils used in kitchens and restaurants· transferring, weighing and checking supplies and equipment· assembling and preparing ingredients for cooking, and preparing salads, savouries and sandwiches· packing food and beverage trays for serving, or· cooking, toasting and heating simple food items.oOOo

Ratio Decidendi

Legal Principle Established

Therefore, the Tribunal is satisfied reg 2.72A(3) of the Regulations is 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 reg 1.13B of the Regulations. The Tribunal notes that records of the Fair Work Ombudsman (the FWO) confirm that a number of PappaRich franchise operators in Sydney have been issued with heavy fines following underpayment of wages.[2] However, based on its review of ASIC searches of the Company’s directors, its shareholders including its corporate shareholders, the Tribunal is satisfied that none of the natural persons involved in the Company or its associated entities have been the subject of investigation or adverse findings by the FWO.[2] News and Media search - Fair Work Ombudsman Further, the Tribunal has had regard to the Department’s records, including its Integrated Client Services Environment records, and has found no information to indicate that there is any adverse information known to Immigration about the Company or a person associated with the Company. For these reasons, the requirements of reg 2.72(4) are met.Nominator is a standard business sponsor Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. Evidence before the Tribunal is that the Company is a standard business sponsor. Its most recent sponsorship application was approved on 14 May 2018 for 5 years effective until 14 May 2023. For these reasons, the requirement in reg 2.72(5) is 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 Company 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 confirmed below at paragraph [102], the Tribunal is satisfied that the Company is not required to pay a nomination contribution charge and so there is no debt owed under s 140ZO. For this reason, the requirement in reg 2.72(5A) is 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); and, ·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).