Rossopomodoro Pty Limited (Migration)

Rossopomodoro Pty Limited (Migration) [2021] AATA 3346 (2 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Rossopomodoro Pty Limited
CASE NUMBER:  1828774
HOME AFFAIRS REFERENCE(S):          BCC2017/3017885
MEMBER:Karen McNamara
DATE:2 September 2021
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 02 September 2021 at 3:58pm
CATCHWORDS

MIGRATION – application for approval of nomination of position – genuine position – business’s modest operations and applicant’s lower-level tasks – comparison of tasks of position and ANZSCO description – nominee’s training and work experience – business’s operations and financial statements – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140GB(2)
Migration Regulations 1994 (Cth), rr 2.72(10)(f), 2.73
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 September 2018 to refuse to approve the nomination application by Rossopomodoro Pty Limited (the applicant) under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 22 August 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 refused the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation was genuine.
The applicant applied to the Tribunal on 2 October 2018 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 1 September 2021, the applicant represented by Ms Ketty Laffi appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Francesca Clementi (the nominee) and Mr Enrico Delmastro (dependant applicant) in the related matter for the subclass 457 visa (AAT Case file 1830533). The related matters were heard concurrently in a combined hearing.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 and nominee were given a fair opportunity to give evidence and present arguments.
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 reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, 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.
Background
The applicant owns and operates two Italian pizzeria style restaurants located in Balmain and Bondi NSW. The nominated position is located at the Balmain restaurant.
On 22 August 2017, the applicant lodged an application for an employer nomination for the position of Restaurant Manager in the occupation of Café or Restaurant Manager (ANZSCO 141111) under the Subclass 457 Temporary Work (Skilled) stream. The nominated base salary is $54,600 per annum.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
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 applicant has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination a Subclass 457 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and the fee has been paid. The applicant has identified Ms Francesca Clementi in the nomination. The nomination includes the location of Balmain Sydney NSW, at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Café or Restaurant Manager (ANZSCO 141111). For these reasons the requirements of reg 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.
Departmental records indicate that the applicant was approved as a standard business sponsor on 7 November 2016 to 7 November 2021, therefore the agreement is still valid. The Tribunal is, therefore, satisfied that the applicant is a standard business sponsor. For these reasons the requirements of reg 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.
The applicant has identified in the nomination Ms Francesca Clementi, the nominee to work in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111). For these reasons the requirements of reg 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. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: reg 2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: reg 2.72(7A); and
·if the Subclass 457 visa holder met cl 457.223(6), he or she must either: continue to meet cl 457.223(6); or be an exempt applicant under cl 457.223(4); or have achieved in a single attempt a test score specified in the relevant instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: reg 2.72(10)(g).
Department records indicate that the nominee is not, and has not been, the holder of a subclass 457 visa. Therefore, the Tribunal finds that the requirements of r.2.72(6), (7A) and (10)(g) do not apply in this case.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The applicant has provided the name of the occupation, Restaurant Manager and its corresponding ANZSCO code of 141111 and the location of Balmain, which is where the occupation will be carried out.
For these reasons the requirements of reg 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.
The Tribunal notes the inclusion of disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act.
Accordingly, the requirements of reg 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 regs 1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in regs 1.13A and 1.13B, known to Immigration about the applicant or an associated person.
For these reasons the requirements of reg 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: reg 2.72(10)(b).
The applicant nominated the nominee in the occupation of Café or Restaurant Manager (ANZSCO 141111). The aforementioned occupation has attached to it the following inapplicability conditions (or ‘caveats) in accordance with instrument IMMI 17/060:
·Item 8 The position is in a limited service restaurant
limited service restaurant includes the following:
(a) a fast food or takeaway food service;
(b) a fast casual restaurant;
(c) a drinking establishment that offers only a limited food service;
(d) a limited service cafe, including a coffee shop or mall cafe;
(e) a limited service pizza restaurant.
The Tribunal has before it details regarding the operations of this restaurant, the number of employees including wait staff and their role within the business.
At the hearing the applicant provided detailed evidenced pertaining to the operations of the restaurant including seating capacity, menu options, table service, reservations processes and noted that the restaurant is fully licensed and holds a current liquor license. The Tribunal has cited evidence including a Statutory Declaration dated 10 January 2019, photographs and menus attesting to the operational details about the restaurant.
The applicant has also provided detailed evidence about the tasks undertaken by the nominee, who currently fills the nominated position of Restaurant Manager. The Tribunal is satisfied that the tasks of the position are consistent with the tasks of the occupation of Café or Restaurant Manager.
The Tribunal also cited documentary evidence including an employment contract and position description concerning the position fulfilled by the nominee. The aforementioned documentation, in conjunction with the verbal evidence received at the review hearing, indicates the tasks and duties performed by the nominee are commensurate with the occupation of Café or Restaurant Manager as defined in ANZSCO. Further, the Tribunal accepts that the nominated position is not in a limited service restaurant. Therefore, the Tribunal is satisfied that nomination of the occupation is not precluded by an inapplicability condition (or ‘caveat’).
Following careful consideration of the evidence, the Tribunal is satisfied that the nominated occupation is duly listed in instrument IMMI 17/060 and is applicable to the nominee who is employed as a Restaurant Manager.
In conclusion, the Tribunal finds that the requirements of reg 2.72(10)(aa) are met and the requirements of reg 2.72(10)(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 (Cth).
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: reg 2.57(3A). ‘Earnings’ is defined in reg 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: reg 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: reg 2.72(10AB).
Based on the evidence before it, the Tribunal finds that the nominee’s current annual earnings as recorded in her 2021 income statement is $61,513 plus superannuation. The nominee’s most recent employment contract dated 23 June 2021 shows that the nominee’s base salary is $68,800 plus superannuation. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
Evidence before the Tribunal including the applicant’s organisational chart indicates that the nominee is solely responsible for the management of the restaurant’s operations. Therefore, the Tribunal is satisfied that there is no Australian citizen or permanent resident performing equivalent work at the same location.
The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in an Employment Agreement, dated 23 June 2021 which indicates that the annual base salary of the nominee will be $68,800. The agreement also sets out the details of the nominee’s superannuation and leave entitlements. The applicant has also provided a copy of the Employment Agreement for the Restaurant Manager (an Australian citizen) located at the Bondi Restaurant which shows the remuneration and terms and conditions are the same as that provided to the nominee.
The Tribunal is therefore satisfied that the nominee’s contract of employment has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).
The Tribunal has before it current market salary information provided by the applicant, including remuneration surveys from Indeed, PayScale and Seek. The salary range for an average Restaurant Manager salary in Sydney as set out on PayScale ( accessed 2 September 2021), is $53,000 to $79,000 with the average being $61,000. The Tribunal is satisfied on the evidence before it, that the proposed base salary of $68,800 is within the average market rate for an Australian equivalent and is above the median.
The Tribunal is therefore satisfied that the nominee’s salary is no less favourable than that which would be provided to the relevant Australian equivalent.
Accordingly, the Tribunal is satisfied that the nominee's terms and conditions will be no less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident for performing equivalent work at the same location.
Accordingly, the Tribunal finds that the requirements of reg 2.72(10)(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 (currently $53,900).
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: reg 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: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.
Likewise, the requirement in reg 2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): reg 2.72(10AB).
The Tribunal is satisfied from the evidence provided that the nominee’s annual earnings (2020/21 Financial year) were $61,513 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy reg 2.72(10)(cc).
On the evidence, the Tribunal is satisfied that the nominee’s annual earnings exceed the TSMIT, and that (based on the market salary rate information assessed in the section above) 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 TSMIT. In particular, the Payscale salary range median figures exceed the TSMIT.
On balance, therefore, the Tribunal finds that the requirements of reg 2.72(10)(cc) are met.
Certification under reg 2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: reg 2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument.
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in 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 IMMI 17/060.

From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters.
Accordingly, it is satisfied that the requirements of reg 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 delegate refused the application on the basis the applicant’s nomination did not satisfy the requirements of r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
In their decision dated 14 September 2018, the delegate noted that they were not satisfied that the proposed tasks, that the nominee will be performing, support the conclusion that the nominee is likely to be actually regularly performing a significant majority of the duties as defined in ANZSCO of a Cafe or Restaurant Manager 141111. The delegate stated that ‘the position appears inconsistent with the modest number of floor staff and current staffing arrangements. It is my assessment that it is likely the applicant will be engaged in lower level responsibilities rather than regularly performing the claimed duties on a full-time basis.’
The Tribunal notes that more comprehensive evidence has been presented to it, than that provided to the delegate in the original application. The Tribunal has also had the benefit of discussing with the applicant at the hearing, the business’s organisational structure, financial position, operations and precise tasks and responsibilities of the nominated position. The Tribunal therefore on the basis of this evidence, has formed a different view and accepts the evidence presented by the applicant in addressing the requirements of regulation 2.72(10)(f).
The applicant provided to the Tribunal a job description regarding the position pertaining to the nominated occupation of Café or Restaurant Manager, which relevantly states the following:
Responsibilities
Managing restaurant administration and operations
Main duties
·     Planning and supervising menus in consultation with cooks
·     Estimating food consumption, placing orders with suppliers, scheduling delivery of food and beverages
·     Negotiating prices in accordance with budget
·     Matching orders and deliveries
·     Inspecting restaurant and kitchen to ensure hygiene levels
·     Selecting floor and kitchen personnel and providing them with training and supervision
·     Taking care of reservations and monitoring customer satisfaction
·     Resolving customer complaints
·     Ensuring health and safety and liquor regulations are adhered to
·     Arrange staff roster
·     Maintain budget and employee records
Qualifications
AQF Associate Degree, Advanced Diploma or Diploma. At least three years of relevant
experience may substitute for the formal qualifications.
Essential skills
- Ability to plan menus
- Food ordering
- Price negotiation
- People management
- Health and Safety
- Responsible service of alcohol
- Staff supervision and training
- Conflict resolution
Employment experience
In the absence of a suitable qualification, at least 3 years of relevant experience is required.
The Tribunal has considered the ANZSCO occupational dictionary with regard to the occupation of Café or Restaurant Manager (141111). ANZSCO states in relation to the occupation of Café or Restaurant Manager as follows:
UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS
CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZQF Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
·            planning menus in consultation with Chefs
·            planning and organising special functions
·            arranging the purchasing and pricing of goods according to budget
·            maintaining records of stock levels and financial transactions
·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
·            conferring with customers to assess their satisfaction with meals and service
·            selecting, training and supervising waiting and kitchen staff
·            may take reservations, greet guests and assist in taking orders
Occupation:
141111 Cafe or Restaurant Manager

141111 CAFE OR RESTAURANT MANAGER

Alternative Titles:
Food and Beverage Manager
Restaurateur
Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.

Note: Fast Food Managers are excluded from this occupation. Fast Food Managers are included in Occupation 142111 Retail Manager (General).
Skill Level: 2
Specialisations:
Bistro Manager
Canteen Manager
Caterer
Internet Cafe Manager
Additionally, the applicant has provided to the Tribunal a comparison of tasks as indicated in the job description above against those listed in the ANZSCO occupational dictionary.
The Tribunal has afforded consideration to the oral evidence obtained at the hearing in conjunction with the written submissions and supporting documentation, including the employment contract and details of the nominee’s work history with the applicant.
Evidence before the Tribunal shows that the nominee commenced working for the applicant full time in the position of Restaurant Manager in April 2017. The nominee has extensive experience in the hospitality sector having worked since 2008, in management and supervisory positions in numerous restaurants in Italy, London and Sydney. The nominee has attained a Diploma of Hospitality from Australian Pacific College in July 2017 and holds a Diploma of Hospitality from Italy attained in 2008.
The Tribunal has before it numerous photographs of the business' premises and has also had regard to the business' website and various online reviews about the restaurant, the quality of its food, the level of service provided and recommendations. The Tribunal has also had regard to the applicant’s contemporary financial statements and Business Activity Statements provided to the Tribunal.
Given the evidence before it, the Tribunal is satisfied the position offered to the nominee is genuine and is what it purports to be. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee's experience and qualifications. The Tribunal is satisfied on the evidence before it that there is a business need for the position which supports the genuine need for the position. The Tribunal also accepts the evidence of Ms Laffi about the nominee’s contribution and standard of work since her commencement in the role in April 2017.
Accordingly, the Tribunal is satisfied that the position associated with the nominated occupation is genuine, and it finds that the requirements of reg 2.72(10)(f) are met.
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.
The applicant has provided to the Tribunal a signed Employment Agreement, dated 23 June 2021, indicating that the nominee’s salary is $68,800 per annum plus superannuation. The original employment contract provided to the Department in 2017 dated 9 August 2017, shows the nominee’s salary was $54,600 per annum plus 10.5% superannuation.
Accordingly, the Tribunal finds that the requirements of reg 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): regs 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.
As the applicant is not a party to a work agreement, the requirements of regs 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 ss 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 ss 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 is Café or Restaurant Manager 141111. This occupation is classified as Skill Level 2 in ANZSCO. All occupations which are classified in ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b) of the Act: IMMI 13/137. Furthermore, the nominee has attained Diploma qualifications relevant to the nominated position. In the circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(3) of the Act are met and the applicant is exempt from having to satisfy the labour market testing requirements in s.140GBA of the Act.
For these reasons, the labour market testing requirements in s.140GBA of the Act 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.
Karen McNamara
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 3346

2 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies

Appeal