ROBROS INVESTMENTS PTY LTD (Migration)

ROBROS INVESTMENTS PTY LTD (Migration) [2021] AATA 766 (8 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ROBROS INVESTMENTS PTY LTD
CASE NUMBER:  1819525
HOME AFFAIRS REFERENCE(S):          BCC2017/1997557
MEMBER:Amanda Mendes Da Costa
DATE:8 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 8 February 2021 at 11.24am

CATCHWORDS
MIGRATION – nomination of a position – position of Chef – inapplicability condition – limited service restaurant – updated business information – anti-thesis of the definition of full-service restaurant – liquor licence – variety of seasonal and regional fish supplies from local fresh vendors – terms and conditions of employment – genuine position – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395
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 14 June 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 6 June 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa) because she considered that the inapplicability condition (8)specified in IMMI 17/060 applied to the nominated position. The delegate noted:
I acknowledge that the business is a licensed restaurant, and the kitchen staff are required to undergo the process of filleting fish in preparation of a variety of whole fish to produce some food items. However, having considered the nature of the business and the range of menu options, I find that the business is a typical limited fish and chips and hamburger shop …I am satisfied that the position is in a limited service restaurant.
Mr Greg Robotus, a founder and director and Mr Michael Benaradsky, the National Operations Manager of the company appeared before the Tribunal on 17 December 2020 to give evidence and present arguments on behalf of the applicant.
The applicant was represented in relation to the review by its registered migration agent, who also attended the hearing.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing and that the technology for facilitating the hearing was successfully trialled with the applicant prior to the hearing.
The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The documents provided to the Tribunal for the purpose of the review, included the following:
·design plans of premises;
·contract of employment for nominee dated 24 May 2017;
·photographs of the kitchen, exterior and dining areas in the applicant’s premises;
·position description;
·liquor licence renewal notice;
·liquor licence;
·footpath trading permit;
·building plan of business premises;
·statement of service for nominee;
·organisational chart;
·standard business sponsorship approval notice;
·articles on fast casual and takeaway dining;
·sales information for the applicant’s business;
·floor plan;
·menus;
·response to case officer;
·submissions in respect of nomination application for subclass 457 visa;
·copy of decision in YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; and
·written submissions dated 10 December 2020.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
Based on the evidence in the nomination application form and that provided directly to it, the Tribunal finds that the requirements of r.2.72(3) are met:
·The applicant is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a);
·The nomination was made on the internet using the approved form and fee: r.2.73(2), (3), (5) & (9);
·The applicant identified the nominated visa applicant in the nomination: r.2.73(4A) and r.2.72(5);
·The nomination includes the location at which the occupation will be carried out, being 3/252-264 Clarendon Street, South Melbourne, 3205, Victoria, and the name ‘Chef’ since the applicant is a standard business sponsor.
The Tribunal is further satisfied that the applicant has provided the certification required by r.2.72(10)(e).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The applicant is a standard business sponsor. Its sponsorship was approved on 21 May 2018 and is effective until 21 May 2023.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
On the basis of the information provided in the nomination form, the Tribunal is satisfied that the applicant has identified the person to undertake the nominated occupation.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument IMMI 17/060; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The applicant clearly identified in the application form that it was nominating a ‘Chef,’ ANZSCO Code 351311 to work at the location 3/252-264 Clarendon Street, South Melbourne, 3205, Victoria.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
Having reviewed the nomination application form the Tribunal is satisfied that this certification has been made and thus the applicant meets the requirements of r.2.7(8B).
For these reasons the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about either the applicant or an ‘associated person’.
For these reasons the requirements of r.2.72(9) are met.
Specified occupation
Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation
before the nomination can be approved: r.2.72(10)(b).
The applicant is a Standard Business Sponsor. It nominated the position of Chef (ANZSCO 351311) which is specified in IMMI 17/060. On 19 April 2017 and further on 1 July 2017 changes were made to the 457 program in respect of this occupation which is no subject to an ‘Inapplicability condition’, which means that the nomination of this occupation is now subject to an additional consideration or caveat.
The occupation of ‘Chef’ is now subject to the following inapplicability conditions: (IMMI 17/060. Notes 7 & 8)
(7) The position is involved in mass production in a factory setting.
(8) The position is in a limited service restaurant.
The definition of a limited service restaurant includes the following:
(a)       a fast food or takeaway service;
(b)       a fast-casual restaurant;
(c)       a drinking establishment that offers only a limited food service;
(d)       a limited service café, including a coffee shop or mall café;
(e)       a limited service pizza restaurant.
Applicant’s written submissions
The written submissions made by the applicant, include the following:
·In order to determine whether the nominated occupation is excluded by inapplicability criteria 8 (that is, the position is in a limited service restaurant), the Tribunal must determine whether the applicant’s business is in the nature of a ‘limited service restaurant’.
·The definition of a ‘limited service restaurant’ prescribed by s.4 of IMMI17/060 is exhaustive. That is, for the purposes of applying IMMI 17/060, ‘limited service restaurant’ means and includes only:
(a) a fast food or takeaway service;
(b) a fast-casual restaurant;
(c)   a drinking establishment that only a limited food service;
(d) a limited service café, including a coffee shop or mall café;
(e) a limited service pizza restaurant.
·In advancing the above contention the applicant relied on the reasoning of the High Court of Australia in YZ Finance Co Pty Ltd v Cummings[1] (YZ Finance). That case concerned whether the definition of ‘security’ prescribed by s.24(2) of the Moneylenders and Infants Loans Act 1941-1961 (NSW) including a ‘promissory note’. His Honour McTiernan J, with whom the remainder of the Court agreed, said at 398-399:
[1] 109 CLR 395.
The words of the sub-section are: “In this section ‘security’ includes a bill of sale, mortgage, lien and charge of any real or personal property, and any assignment, conveyance, transfer or dealing with any real or personal property to secure the repayment of the loan. Lord Watson said in Dilworth v Commissioner of Stamps:
“The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute, and when it was so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions”. I agree entirely with the way Sugarman J applied this passage in the course of his reasoning in Batchelor & Co Pty Ltd v Websdale. His Honour said, “The enumeration in sub-s.(2) adds nothing to the natural import of the word ‘security’. Indeed, all the matters enumerated are within the strictest meaning of that term and, within that meaning, the second limb of the definition is of the widest import. All the matters enumerated share the common characteristic that they relate to securities by which rights in relation to specific property of the debtor are conferred. These considerations lead to the conclusion that ‘include’ in sub-s.(2) is equivalent to ‘mean and include’ and that the definition therein given is intended to be exhaustive, or at least that the securities intended to be embraced all share the common characteristic of conferring rights against specific property.” The word “security” in the context of sub-s.(1) could, in the absence of sub-s.(2) include a promissory note. All the transactions mentioned in sub-s.(2) are securities in themselves. None of them needs any expression of legislative intent to be a security for the purpose of sub-s.(1). The manifest object of sub-s.(2) to be gathered from its contents is to afford guidance as to what the term” security” is sub-s.(1) is intended to be confined. I think it would be contrary to the legislative intention revealed by adding sub-s.(2) to sub-s.(1) to enlarge by construction the scope of the word “security” in sub-s.(1) to bring within the operation of the latter provision a promissory note, as no such instrument falls within the enumeration of securities in sub-s.(2). In my opinion this sub-section provides “an exhaustive explanation” of the meaning of “security” for the purpose of sub-s.(1). The meaning of “security” elsewhere in the Act is not, of course, governed by sub-s.(2).
·In circumstances where all of the things included within the definition of ‘limited service restaurant’ fall within the natural meaning of limited service restaurant (none of those types of business needs any expression of legislative intention to be a ‘limited service restaurant’ for the purposes of IMMI 17/060), the meaning of ‘limited service restaurant’ should be read as limited to those types of businesses specifically included in the definition. This is the only interpretation of the definition of ‘limited service restaurant’ prescribed by s4 of IMMI17/060 which is consistent with the approach of the High Court in YZ Finance.
·The Minister could have defined ‘limited service restaurant’ as any restaurant which is in not a ‘full-service restaurant’. However, the Minister chose not to define ‘limited service restaurant’ in that way. We consider that the Tribunal would be in error to adopt a definition of ‘limited service restaurant’ which is simply the anti-thesis of the definition of ‘full-service restaurant’, or adopt the approach that anything less than a ‘full-service restaurant’ falls within the definition of ‘limited service restaurant’, particularly in circumstances where the concept of ‘full-service restaurant’ is not employed anywhere in the Act, the Regulations or the relevant legislative instrument.
·In those circumstances, the nominated position is only excluded by inapplicability condition 8 if its business is one of the five types of food service business prescribed by s4 of IMMI 17/060. The applicant’s business is not (a)-(d) a limited service pizza restaurant. Therefore, the applicant’s business will only be a ‘limited service restaurant’ if it is a ‘fast casual restaurant’, a term which is not defined in the Act, Regulations or IMMI 17/060.
·The applicant’s food service business does not fall within the definition of ‘fast casual restaurant’ given that:
(a) dine-in customers are seated by a member of the wait-staff and given menus after being seated at their tables;
(b) after considering their menus, customers order their meals from staff at the counter;
(c)   customers ordered food and drinks are brought to their table by wait staff;
(d) meals are served on re-usable tableware and with re-usable cutlery;
(e) wait staff clear tables after customers depart the restaurant;
(f)    meals require preparation in a full kitchen, not in a ‘production line’ of staff serving at a bain-marie;
·The applicant’s business model is only one element short of ‘full table service’, that of ordering the food at the table. The applicant’s food service model includes all other aspects of table service.
·The applicant’s business offers customers meals made from fresh, locally caught seafood. Because the applicant’s vendors cannot guarantee what type of fish will be available, and because the availability of many fish specifies is seasonally dependent, the nominee is required to make day-to-day judgments about which fish to purchase from vendors and how that fish should be offered to customers as a daily special. This level of autonomy is inconsistent with the service model of a ‘fast-casual restaurant’, where food offerings are standardised and highly systematised both within and amongst locations.
·The number of meals prepared in a typical service period and the size of the kitchen team needed requires the leadership and management of a qualified chef to ensure not only swift and high quality service but also to maintain an essential level of workplace safety in what can potentially be a very dangerous working environment.
·The nominee’s position is responsible for deciding which fresh products to procure from local fresh vendors and then designing and costing daily menu specials that could be offered, based on those offerings.
·The whole fresh fish purchased by the nominee and needs to be filleted each day. This process involves highly skilled knife techniques that require a qualified chef to not only achieve a quality outcome but also to ensure workplace safety as the equipment required can be extremely dangerous in untrained hands.
·The responsibilities and skills required to execute these knife techniques are far beyond the tasks that are required or expected within a ‘limited service restaurant’.
·In the event the Tribunal is not satisfied that the definition of ‘limited service restaurant’ in s4 of IMMI 17/060 is exhaustive, then the applicant nevertheless submits that its business service model cannot fit within even the broadest definition of ‘limited service restaurant’ because:
(a) the applicant offers near-full table service to dine-in customers;
(b) the applicant’s dine-in customers are served meals on reusable flatware and with reusable cutlery and rinks are served in reusable glasses;
(c)   the applicant’s menu is extensive, and its specials vary daily depending on available produce;
(d) the applicant’s food preparation and service model cannot be described as uniform either within or between its locations;
(e) chefs at each of the applicant’s locations exercise significant autonomy in relation to the ordering, preparation and presentation of fresh fish made available by local vendors on a day-to-day basis;
(f)    the preparation of fresh fish requires a degree of skill and technique that goes well beyond requirements of preparing food available at any ‘limited service restaurant’.
(g) The applicant’s liquor licence is not suggestive of the business being a ‘limited service restaurant’;
(h) Of the 16 Hunky Dory restaurants, a majority of nine are company owned and only seven are franchises;
(i)    In the most recent, pre-Covid-19 analysis of the ratio of sales, the majority were dine-in.
·Any attempt to interpret the meaning of ‘fast casual restaurant’ must also consider the intent of the legislation.   The various inapplicability conditions or position caveats, including that the position not be in a ‘limited service restaurant’ have the stated purpose of safeguarding the integrity of the visa programme by ensuring that applicants are nominated for genuinely skilled positions.[2]
·Despite applicant displaying some characteristics that can be found in most definitions of ‘fast casual restaurant’ there is an absence of the critical features that must be present in order to contravene the stated purpose of the legislation(in the context of a chef) The applicant doesn’t have a simple menu that’s largely pre-prepared without the need for the skills of an on-site chef.
·These are the only characteristics that can assess whether the integrity of the visa programme is threatened as all other features or attempts to define ‘casual restaurant’ are merely indicators of an increase in likelihood of a role not being a genuinely skilled position and their presence of themselves don’t determine the skill level of the role.
·In the premises, the applicant submits that:
(a) the applicant’s business not a ‘ casual restaurant’; and
(b) the applicant’s business not a ‘limited service restaurant’; and
(c)   the nominated position is not in a ‘limited service restaurant’; and
(d) the applicant satisfies the requirements of r.2.72(10(aa)of the Regulations.
[2] IMMI 17/060: Specification of Occupations -Subclass 457 visa

The applicant provided the Tribunal with a number of articles and book excepts from American publications regarding the concept ‘fast casual restaurant’. In his book Fast Food and Junk Food -an encyclopedia of what we love to eat[3], Andrew F. Smith describes a ‘fast casual’ restaurant as follows:
Technomic Information Services, a restaurant research and consulting firm in Chicago, created the term “fast casual” to reflect a new category of restaurant chain whose meals are priced between fast food chains -such as McDonalds, Burger King or Subway- and casual restaurants – such as Applebee’s, Denny’s Or Ruby Tuesday. Fast casual does not offer full table service. As at fast food restaurants, customers typically wait in line to place their order, locate their own table, pick up their own food and bus their own table when they leave. The average total for a meal in fast-casual restaurants is between $8 and $15, and there’s no need to leave a tip. A large number of small fast-casual chains have been launched in many communities across the United States.
Fast casual chains often focus on particular types of items such as upscale ethnic food, salads or bakery goods … These chains typically specialize in upscale foods that are fresher and sometimes more nutritious than the fare served as fast food establishments. Fast-casual chains have been expanding rapidly. As of 2009, there were an estimated 13,500 stores in the fast-casual category, with sales at $23 billion annually.
[3][3] Page 249, Fast Food and Junk Food-an encyclopedia of what we love to eat, Andrew F. Smith, Published by Greenwood.
In an article in The Washington Post newspaper[4], Roberto A. Ferdman observes:
“ … Everyone agrees that fast casual is the next big thing, but its surprisingly hard to define what it is exactly. What makes fast casual food fast casual – and not simply fast food? And at what point do we draw the line between fast casual places and the likes of Applebee’s and Chili’s, which have table service, but also takeout? The answer might simply depend on whom you ask.
“It’s all very confusing”, said Darren Tristano, executive vice president of Technomic, an industry research firm. “The truth is that no one really has the ‘right’ answer”.
Most industry experts can agree that an essential component of the fast-casual category is its Tristano said. “If you think it’s hard to tell what makes restaurant closer to $5 for fast food restaurants. Fast casual restaurants also, ideally, earn less than 50 percent of their business from full-service sit-down meals. Otherwise they too closely resemble casual dining restaurants like Applebee’s. But there’s a lot of other criteria.
By Technomic’s estimation, there are at least 10 different markers of restaurants that fall within the category: the quality of the food, the use of better ingredients, food that is wholesome, a perception of freshness, first-rate décor, fair pricing, fast service, friendly employees, flexible offerings, and a full view of how the food is prepared.
“What we saw early on with fast casual was mainly an emphasis on offering a better product”, said Tristano. “It was the price pint, but also the food quality, the ingredients, the experience”.
“I think you’re going to see less and less distinction over time as more fast food concepts shift towards the fast-casual model,” Tristano said. “If you think it’s hard to tell what makes a restaurant casual today, it’s only going to be more confusing.”
[4] The Chipotle effect: Why America is obsessed with fast casual food, published 2 February 2015.
Evidence of Greg Robotus and Michael Benaradsky
The applicant’s business is located in the Clarendon Street restaurant and shopping precinct in South Melbourne. It operates a fish and seafood restaurant which has seating for approximately 120 patrons. Due to the current COVID-19 restrictions on businesses in Melbourne, the applicant is permitted to seat 20 patrons inside the restaurant and 50 outside. During the Stage Four restrictions in 2020 (when it was not permitted to serve meals at the restaurant) the applicant continued to operate its business by serving take-away and home delivered meals to its customers.
In addition to this business the applicant owns and operates another eight restaurants and a further seven are operated by franchisees. The majority of the restaurants are located in Melbourne with one in each of Bendigo, Byron Bay and the Gold Coast. The applicant is also planning to open restaurants in Sydney.
The applicant business in South Melbourne is open for lunch and dinner seven days a week from 11am to 11pm. Its South Melbourne restaurant has a liquor licence, issued under the category of Restaurant/Café. Apart from periods in 2020 when government restrictions permitted only takeaway and home delivery meals being served, the focus of the business is for customers to dine in and the majority of sales are currently generated from dine in meals.
Mr Robotus and Mr Benaradsky explained to the Tribunal that the applicant had investigated significant effort in encouraging customers to stay for an extended period to time to enjoy their meals. This includes heated outdoor seating, an on-premises liquor licence with drinks served (in glasses) to customers by staff; wait staff present on every shift; meals served on reusable crockery with metal cutlery, drinks are served in glassware; and no takeaway containers or packaging used by customers.
While customers place their orders at a counter and pay before eating, food and beverages are served while customers are seated at tables – by wait staff for consumption on the premises. Drinks orders are taken at the table by wait staff who deliver the beverages and take payments from customers at their tables.
Although the business uses some imported frozen fish and seafood items, approximately 80% of the seafood and fish is freshly prepared in the applicant’s kitchen and 90% of the fish is purchased whole. The restaurant uses large display cabinets to display whole fish and seafood – which is then prepared for cooking and serving by the nominee and other kitchen staff. Given the applicant’s reliance on purchasing whole fish and seafood, it requires an experienced and skilful chef who is able to cut and portioning fish economically and in a visually attractive manner.
Mr Robotus and Mr Benaradsky explained that although there is a common menu for the applicant’s restaurants, there are differences depending on seasonal and regional produce availability. For example, the Gold Coast restaurants serves predominantly warm water fish and seafood varieties whilst the Melbourne restaurants serves cold water varieties. In addition, each of the restaurants (including the South Melbourne one) offers its own daily ‘specials’ dishes and the chefs have the option of altering ingredients to suit customer preferences.
The restaurant’s accept reservations or customers may arrive without prior notice. They are greeted by a host and directed to proceed to the front counter where they chose and pay for their meals from staff. They are then taken to a table where drinks orders are taken, and their meals are delivered to them. Wait staff walk around the restaurant area whilst customers are eating, assisting them with additional drinks, desert orders and further requests.
The Tribunal has considered the organisational chart which shows that the applicant employs a full-time manager, assistant manager and chef (the nominee), with three part-time cooks, a kitchen hand and five part-time wait staff. The position description provided by the applicant indicates that the proposed duties and responsibilities of the nominated position is commensurate with those set out in the ANZSCO dictionary for the position of Chef.[5]
[5] ANZSCO 351311.
The Tribunal has also considered the applicant’s submissions regarding the meaning of ‘limited service restaurant’ as set out in IMMI 17/060 and particularly whether the list of food outlets contained in the definition is an exhaustive one.
The Tribunal has considered the decision in YZ Finance and the applicant’s submissions regarding the reasoning of the Court in that case. However, it is satisfied that the context of IMMI 17/060 is sufficient to show that the word ‘includes’ is employed for the purpose of adding to the natural significance of the words following and that the use of ‘includes’ in relation to the definition of ‘limited service restaurant’ is not intended to be exhaustive.
Whilst the Tribunal does not accept the applicant’s submission that the definition of ‘limited service restaurant’ in IMMI 17/060 is an exhaustive one, it does consider that the definition of ‘limited service restaurant’ is not simply the antithesis of the definition of ‘full-service restaurant’. The Tribunal finds that there is nothing in the definition which suggests that anything less than a full-service restaurant necessarily falls within the definition of ‘limited service restaurant’, provided that the restaurant in question does not fall within the categories of fast food; takeaway; fast-casual; or drinking establishments; coffee shops, mall cafes or limited service pizza restaurants.
The Tribunal acknowledges that the service provided in the applicant’s business does not include customers ordering food at their tables and paying after finishing their meals, which are features of a full-service restaurant. However, the applicant’s food service model includes other aspects of full table service such as:
·     dine-in customers are seated by a member of the wait-staff and given menus after being seated at their tables;
·     customers ordered food and drinks are brought to their table by wait staff;
·     meals are served on re-usable tableware and with re-usable cutlery;
·     drinks are served with reusable glassware;
·     wait staff clear tables after customers depart the restaurant;
·     meals require preparation in a full kitchen, not in a ‘production line’ of staff serving at a bain-marie;
·     the applicant’s menu is not limited, and its specials vary daily depending on available produce;
·     the applicant’s food preparation and service model cannot be described as uniform either within or between its locations;
·     chefs at each of the applicant’s locations exercise significant autonomy in relation to the ordering, preparation and presentation of fresh fish made available by local vendors on a day-to-day basis; and
·     the applicant’s liquor licence is not suggestive of the business being a ‘limited service restaurant’;
The articles provided by the applicant regarding fast casual restaurants[6] indicate that some of the elements of a full service restaurant may be present in a fast casual one, although the service more often involves customers waiting in line to place their orders, locating their own table, picking is their own food and disposing of food implements and containers before they leave. These articles suggest the main distinction between a fast casual and a fast food restaurant is the use in the former of better and fresher ingredients, the décor of the restaurant, flexible offerings and the emphasis on providing a better food experience for the customers.
[6] Set out in paragraphs 34 and 35 of this decision.
The Tribunal is satisfied that the features of the service in the applicant’s restaurant as set out in paragraph 48 above are not indicative of a fast casual restaurant, given the extent of the table provided to customers, including meals and drinks being delivered to customers; meals and drinks being served on reusable crockery, cutlery and glassware; tables being cleared by staff; a varied menu; and daily specials.
The Tribunal is further satisfied that the majority of the seafood and fish prepared and cooked in the applicant’s kitchen is freshy delivered each day and displayed to customers prior to being prepared in the restaurant’s kitchen. The vast majority of the fish and seafood are delivered whole and are filleted, scaled, cleaned and prepared for cooking by the nominee and other kitchen staff. The Tribunal is satisfied that this preparation requires a degree of skill and technique that goes well beyond requirements of preparing food available in a ‘limited service restaurant’.
The Tribunal finds that the elements of service as set out in paragraph 48 above together with the level of skill required to prepare the fish and seafood dishes served in the applicant’s restaurant indicates demonstrate that the business is not a ‘limited service restaurant’.
For these reasons the requirements of r.2.72(10)(aa) are met.
The instrument does not require that the nomination be supported in writing by a specified organisation and therefore the requirements of r.2.72(1)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028. The amount of earnings currently specified by the instrument is $250,000.00: r.2.72(10AB). As the nominee’s earnings are contracted to be $56,000 (exclusive of superannuation), his annual earnings are not equal to or greater than that specified in IMMI 13/028.
As there is no Australian equivalent performing equivalent work at the same location the Tribunal has considered the methodology specified in IMMI 09/113.
The Tribunal has consulted PayScale.com which indicates that the salary range for a kitchen chef in Melbourne is between $41,000 and $60,000. Therefore, having regard to the available information, the Tribunal is satisfied that the proposed terms and conditions of employment for the nominated position (including an annual salary of $56,000) are no less favourable than the earnings and terms and conditions that would be provided to an Australian citizen or permanent resident performing equivalent work at the same location. For these reasons the requirements of r.2.72(1)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the Temporary Skilled Migration Income Threshold (TSMIT) specified in the instrument IMMI 13/028.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).
As the base rate of pay of the nominee’s annual earnings is proposed to be $56,000.00 (exclusive of superannuation), the base rate of pay for the nominated position is greater than the current TSMIT of $53,900.00. Therefore, the Tribunal finds that r.2.72(10)(cc) is satisfied.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument IMMI;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the instrument IMMI 13/067;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.
Based on the information before it, including in the visa application, the Tribunal is satisfied that the requisite and relevant certification has been made and for these reasons the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The Tribunal is satisfied, after taking into account the oral evidence, the written submission provided by the applicant’s migration agent, the supporting documentation provided and the publicly available information about the applicant’s business, that the position associated with the nominated occupation is genuine and the requirements of r.2.72(10)(f) are met. This issue was not in contention at the primary stage.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument. No occupations are currently thus specified.
A contract of employment dated 24 May 2017 has been provided to the Tribunal which sets out the main terms and conditions of employment and the annual salary (exclusive of superannuation) of $56,000.00. The Tribunal further notes that the nominee is currently employed by the applicant in the position of ‘Chef’ and is paid the nominated salary. The Tribunal accepts the evidence of the Messrs. Robotus and Benaradsky that the applicant intended to continue employing the nominee in the nominated position on a permanent basis.
For these reasons the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.

There is no evidence that the applicant is a party to a work agreement and therefore the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
In this case, the nominated occupation of Chef (ANZSCO Code 351311) is classified as Skill Level 2 in the ANZSCO dictionary. Skill level 2 designated occupations are exempt under IMMI 13/137. The Tribunal is further satisfied that the requirements of s.140GBC(3)(a) are met.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
For the reasons given above, the applicant 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.
Amanda Mendes Da Costa
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2021] AATA 766

8 February 2021

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