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
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…
Keep reading for free
Create a free CaseChat account to read ROBROS INVESTMENTS PTY LTD (Migration) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] AATA 766
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were whether the applicant, Robros Investments Pty Ltd, had satisfied the requirements for approving a nomination under s.140GB(2) of the Migration Act 1958 and Regulation 2.72 of the Migration Regulations 1994. Crucially, the Tribunal had to ascertain if the nominated occupation of Chef was subject to an inapplicability condition, specifically whether the business operated as a "limited service restaurant" as defined in instrument IMMI 17/060. This involved interpreting the definition of "limited service restaurant" and considering whether the applicant's business model fell within its exhaustive list of categories.
The Tribunal reasoned that the definition of "limited service restaurant" in IMMI 17/060 was intended to be exhaustive, drawing analogy from High Court authority on statutory interpretation. It found that Robros Investments Pty Ltd's business was not a fast food or takeaway service, a fast-casual restaurant, a drinking establishment with limited food service, a limited service café, or a limited service pizza restaurant. The Tribunal noted that the applicant's restaurant offered dine-in service with table seating, menus, food brought to tables, reusable tableware, and table clearing by waitstaff, distinguishing it from the characteristics of a limited service restaurant. Furthermore, the business's reliance on fresh, seasonal produce, requiring daily menu adjustments and skilled preparation by a chef, was deemed inconsistent with the standardised, systematised model of a fast-casual or limited service establishment. The Tribunal concluded that the nominated position was not in a limited service restaurant and therefore satisfied the relevant criteria.
Consequently, the Tribunal set aside the decision not to approve the nomination 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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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