SRIMANSWI PTY LTD ATF SRIMANSWI UNIT TRUST (Migration)

SRIMANSWI PTY LTD ATF SRIMANSWI UNIT TRUST (Migration) [2020] AATA 530 (27 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Srimanswi Pty Ltd ATF Srimanswi Unit Trust
CASE NUMBER:  1804246
HOME AFFAIRS REFERENCE(S):          BCC2017/986161
MEMBER:K. Chapman
DATE:27 February 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 27 February 2020 at 1:51pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Café or Restaurant Manager – specified occupation – inapplicability conditions – limited service restaurant – ‘fast casual restaurant’ – subject to a reasonably prescriptive Franchise Agreement – degree of autonomy – flexibility regarding the use of approved suppliers – no Chefs were employed – ability to order and pay at the counter – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 January 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, Srimanswi Pty Ltd ATF Srimanswi Unit Trust (T/A ‘Burrito Bar’ Grafton), applied for approval on 13 March 2017. The applicant nominated Mr Naveen Raavi (‘the nominee’) in the occupation of Café or Restaurant Manager which is coded as number 1411111 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The applicant is a Burrito Bar franchisee and the position of the nominee is located in their premises at Grafton.
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 nomination was not approved on the basis that the applicant failed to satisfy r.2.72(10)(aa) because the delegate was satisfied that the nominated occupation is subject to an inapplicability condition (or ‘caveat’) pursuant to Instrument IMMI 17/060. On 19 February 2018, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.
On 8 January 2020, the Tribunal wrote to the applicant, pursuant to s.359(2) and s.359A of the Act, inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act, and to comment on or respond to information indicating their standard business sponsorship had lapsed. In response the Tribunal received material including, but not limited to, written submissions, ABN Lookup details, bank statements, floorplan, financial reports, taxation records, photographs, a menu, ASIC information, lease documentation, Franchise documents and a letter of engagement regarding the nominee dated 13 March 2017. A standard business sponsor approval notice dated 24 January 2020 was subsequently submitted by the applicant. All material received by the Tribunal has been duly considered.
On 17 February 2020, the afternoon prior to the scheduled review hearing, the representative lodged material including, but not limited to, written submissions, photographs, NSW Liquor licence details, market salary information, recruitment information, extract from the Hospitality Industry (General) Award 2010, position description, letter of support from South Services Butchery dated 13 February 2020, payslips, an organisational chart, and occupational information. All material received by the Tribunal has been duly considered.
The applicant, through its company director Mr Sumankumar Vasikarla, appeared before the Tribunal on 18 February 2020 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent (‘the representative’).
The submission of post-hearing material was permitted and received on 21 February 2020. This included material such as written submissions, the Franchise Agreement and a letter from the General Manager of Burrito Bar dated 20 February 2020. All post-hearing material has been duly considered by the Tribunal.
For the following reasons, the Tribunal has decided to affirm the decision under review not to approve 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). In addition, for nominations made from 23 November 2013, s.140GBA must be met.
Specified occupation
Subclause 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 nominated the nominee in the occupation of Café or Restaurant Manager (ANZSCO Code 141111). As noted in the combined s.359(2)/s.359A invitation, some nominated occupations are now subject to an inapplicability condition (or ‘caveat’). The occupation of Café or Restaurant Manager has attached to it the following inapplicability condition in accordance with Instrument IMMI 17/060:
· Item 8 – the position is in a limited service restaurant.
The Instrument provides that a limited service restaurant includes ‘a fast food or takeaway food service’, ‘a fast casual restaurant’, ‘a drinking establishment that offers only a limited food service’, ‘a limited service café, including a coffee shop or mall café’, and ‘a limited service pizza restaurant.’ The Tribunal notes that if the position of the nominee is in a limited service restaurant, then the applicant is precluded from successful nomination by operation of the Instrument. Accordingly, a relevant consideration in the present matter is whether or not the applicant’s business operations at its Grafton premises are those of a limited service restaurant?
The Tribunal notes that Departmental policy makes reference to the assessment of whether a limited service restaurant is in operation[1]. Additionally, the Tribunal notes that Departmental policy requires an individual assessment of a business operation to determine its characterisation and provides various factors that may point to a business being a limited service restaurant or not. Relevant extracts of this policy are contained at ‘Attachment 2’ to this decision. It is well settled that the Tribunal is not bound by Departmental policy, but should pay it due regard unless there are cogent reasons for departure.[2] In the present matter, no such reasons are apparent to the Tribunal. Accordingly, the Tribunal has assessed the applicant’s Grafton operation carefully, and in doing so has duly considered Departmental policy, to determine whether it is, or is not, a limited service restaurant.
[1] Procedures Advice Manual 3 (PAM3): [Div 2.11 – Div 2.17] Temporary Work (Skilled) visa (subclass 457) – nominations, Section 4.8.1.4 Additional advice on hospitality positions and caveats.
[2] Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The applicant submitted documentary material to both the Department and the Tribunal in support of its contention that it does not operate a limited service restaurant at its Grafton premises. Further, the oral evidence of Mr Vasikarla on behalf of the applicant, and the submissions of its representative, maintained the aforementioned contention. On balance, having regard to the totality of the evidence, the Tribunal is satisfied that the applicant does not operate ‘a fast food or takeaway food service’, ‘a drinking establishment that offers only a limited food service’, ‘a limited service café, including a coffee shop or mall café’, or ‘a limited service pizza restaurant.’ This leaves for consideration whether the applicant’s business operations at its Grafton premises are those of ‘a fast casual restaurant’?
The applicant, through Mr Vasikarla, gave oral evidence in support of the contention that its operation at Grafton is not that of a limited service restaurant. This evidence may be summarised as follows. Mr Vasikarla advised that the applicant is not operating a limited service restaurant at Grafton. He indicated he met the nominee whilst he was working at the Burrito Bar Head Office. Mr Vasikarla advertised for a Restaurant Manager and the nominee was subsequently hired. According to Mr Vasikarla, the nominee has been employed as a Restaurant Manager at the Grafton premises since it opened.
When asked by the Tribunal whether the applicant conforms to a franchise agreement that limits its operations to an approved menu, suppliers, layout and operating procedures, Mr Vasikarla responded that the applicant does not operate a limited service restaurant at Grafton. He added that being in a regional area gives the applicant ‘a free hand’ in the conduct of business at Grafton. For example, the applicant is not tied to the use of MOCO Food Services as the preferred supplier of Head Office because they deliver infrequently to Grafton. Apparently, the applicant utilises PFD and Bid Food as suppliers to the Grafton premises, as they are approved suppliers to Burrito Bar.
Mr Vasikarla confirmed that the Grafton outlet operates a standard Mexican style menu which is prescribed by Head Office, in accordance with the Franchise Agreement. He added that there is more customisation of the menu there, however he agreed that the standard menu operating at the Banyo store, which is also operated by the applicant, is utilised in Grafton. Mr Vasikarla also specifically confirmed to the Tribunal that the bulk of meals served at Grafton come from the standard menu prescribed by the Burrito Bar Head Office.
Mr Vasikarla told the Tribunal that Burrito Bar Grafton employs eleven staff including the Restaurant Manager, three Cooks, a Shift Supervisor, four wait staff and two kitchen hands. He confirmed that no Chefs are employed. There are eight Australian citizens and three visa holders according to Mr Vasikarla. They are employed pursuant to the Restaurant Industry Award in the same fashion as the applicant’s Banyo outlet according to Mr Vasikarla (a post-hearing letter from the General Manager of Burrito Bar dated 20 February 2020 also indicates this to be the case). However, the Tribunal notes that a voluminous extract of the Hospitality Industry (General) Award 2010 was submitted prior to the review hearing. On balance, the Tribunal accepts that the applicant’s employees at Grafton are employed pursuant to the Restaurant Industry Award as described by Mr Vasikarla.
The duties of the nominee at Grafton were described by Mr Vasikarla to include stock taking, recording stock, financial control, hiring, rostering, preparing catering orders, and liaising with the Cooks to develop new menus. When the Tribunal sought clarification of the degree of input from the nominee regarding the design of new menu items, Mr Vasikarla advised that this encompassed creating deals and specials. The nominee also liaises with the applicant’s other outlet in Banyo regarding these matters. Further, the nominee is involved with in-store promotions at Grafton. Mr Vasikarla again specifically confirmed to the Tribunal that the bulk of the meals served at Grafton come from the standard menu prescribed by the Burrito Bar Head Office.
Mr Vasikarla advised the Tribunal that he travels to Grafton from Brisbane every fortnight and attends to matters there such as payroll and marketing. He confirmed that he previously worked in the Burrito Bar Head Office and visited many of the other Burrito Bar premises. He indicated that there are currently thirty three Burrito Bar outlets. They all have the same market branding and utilise the same standard menu prescribed by Head Office, although Mr Vasikarla advised the layouts are different. Mr Vasikarla described the menu at the Grafton outlet to contain Mexican style cuisine, including beef, seafood and desserts. He indicated that the applicant’s outlets at Grafton and Banyo both incorporate new menu items.
Mr Vasikarla told the Tribunal that the Grafton outlet receives many reservations, similarly with the Banyo outlet. He explained that customers can choose to dine in or take away. If dining in, the customers may either order and pay at the counter or do so whilst seated with the assistance of the wait staff (who take starter, main and dessert orders). Mr Vasikarla maintained that the Burrito Bar Grafton is a full service restaurant and not a limited service restaurant. He agreed that no Chefs were employed at Grafton, whereas there are three Cooks. Mr Vasikarla indicated that the Cooks conduct comprehensive food preparation and freshly prepare the meals which are served to the customers at Grafton. Mr Vasikarla confirmed to the Tribunal that the ingredients utilised at Grafton for meals from the standard menu are purchased pursuant to the terms of the Franchise Agreement. He also confirmed that the standard menu utilised at Grafton is that prescribed by Head Office.
The Tribunal raised to the attention of the applicant, through Mr Vasikarla, the matter of the reference to a limited service restaurant in Instrument IMMI 17/060. He maintained that the applicant does not operate a limited service restaurant at Grafton. The Tribunal raised with the applicant that, although it had not made up its mind, the following factors were of concern regarding their contention that it operates a full service restaurant at Grafton; the Franchise Agreement prescribes the use of the standard menu and ingredients for that menu in Grafton are acquired in conformity with that Agreement (which entails a lack of local ‘creative control’ regarding menu composition and further directs uniform market branding), no Chefs are employed, and the acceptance of some dine in customers ordering and paying at the counter. The applicant was invited to comment upon these concerns and Mr Vasikarla indicated that he purchased the franchise because there was less chance of commercial failure, every Burrito Bar outlet is different, the primary nomination refusal was unfair by the Department and he wants to expand further however the decision of the Department is preventing this. The Tribunal has carefully considered all evidence and submissions tendered on behalf of the applicant.
The Tribunal has duly considered the documentary material submitted by the applicant to both it and the Department. This includes written submissions, photographs, menus, the Franchise Agreement, financial records, documentation pertaining to the employment of the nominee, records held by Government, statements in support of the nomination and various operational documents. The Tribunal, in particular, notes the letter of 20 February 2020 from the General Manager of Burrito Bar in support of the applicant operating a full service restaurant at Grafton. Further, the Tribunal is satisfied that the nominee is the point of contact for purchases from the South Services Butchery as noted in the submitted letter of 13 February 2020. The Tribunal accepts that the aforementioned documentary material, in conjunction with the submitted oral evidence, points to the applicant’s Grafton operation possessing some of the characteristics that may be indicative of a full service restaurant as referred to in Departmental policy. For example, these include the use of a commercial kitchen, preparation of food on-site, option for diners to receive full table service, use of crockery, sale of alcohol in accordance with a NSW Liquor licence and that there is the option for departure from the standard menu prescribed by Head Office if approval is obtained (noting there is some variation given Grafton is a regional location).
However, on balance, the Tribunal finds that the applicant at Grafton operates a limited service restaurant because of the following matters. The applicant is subject to a reasonably prescriptive Franchise Agreement that directs the use of the standard menu focused on Mexican cuisine and the purchase of ingredients from approved suppliers (see in particular section 17 and Schedules 2 and 3 of that Agreement). Even though the applicant’s Grafton operation has greater flexibility regarding the use of approved suppliers given its regional location, Mr Vasikarla confirmed that it still utilises suppliers approved by Head Office and also that the ingredients for the standard menu in Grafton are purchased in conformity with the Franchise Agreement. Thus, whilst there is a higher degree of autonomy with respect to the applicant’s outlet at Grafton, as compared to a capital city outlet, it is of only minor degree and the applicant’s business activity remains tied to the reasonably prescriptive aspects of the Franchise Agreement. Although the Tribunal accepts that utilisation of the franchise model by the applicant at Grafton does not necessarily mean its operation attains the characterisation of a limited service restaurant, its application to the facts of the present matter are indicative of such being in operation.
As noted above, the degree of autonomy for the applicant at Grafton regarding adherence to the Franchise Agreement is minor. Additionally, the evidence suggests that the bulk of the food sold at Grafton by the applicant conforms to the requirements of the standard menu prescribed by Head Office, pursuant to the terms of the Franchise Agreement. The Tribunal forms this view given Mr Vasikarla’s unequivocal confirmation of the aforementioned, on more than one occasion, in his oral evidence. Such unequivocal confirmation is preferred by the Tribunal to Mr Vasikarla’s attempt in other oral evidence to portray the flavour of the Grafton outlet as one of greater culinary autonomy. Further, the Tribunal also prefers the unequivocal evidence of Mr Vasikarla, as outlined, to the submitted documentary material seeking to paint the applicant’s Grafton outlet as having significant autonomy with respect to locally devised menu options (for example in post-hearing written submissions and in the submitted letter dated 20 February 2020).
On balance, the Tribunal is satisfied that the applicant has limited ‘creative control’ in the composition of the Mexican style menu that it offers to its customers at Grafton, even though some local variation in this regional location such as meal deals, specials and minor amendment to the standard menu is permitted. This view is reinforced by the applicant’s employment of three Cooks and no Chefs in this location. Accordingly, in the view of the Tribunal, these matters are suggestive of the meals being served at Grafton being of a more standardised, rather than locally customised, variety.
Additionally, the Tribunal considers that the ability for some dine in customers to order and pay at the counter is suggestive of the operation of a limited service restaurant at Grafton, even though it is accepted that some customers also receive full service dining. Further, that the applicant at Grafton utilises the standard menu in use across the Burrito Bar franchise chain (including at the applicant’s Banyo outlet) for the bulk of its trade, and also adopts the chain market branding, as explained by Mr Vasikarla in his spontaneous oral evidence, points to a limited service restaurant being in operation. Whilst the Tribunal accepts that some local customisation occurs (including by way of menu offering and lay out in the regional location of Grafton), it does not accept that such customisation is other than peripheral given that Mr Vasikarla unequivocally confirmed in his oral evidence that the bulk of the food served to customers at Grafton comes from the standard menu prescribed by Head Office, with ingredients purchased in conformity with the Franchise Agreement (albeit it from suppliers other than MOCO Food Services). Following careful consideration, the Tribunal prefers the aforementioned evidence to the documentary material seeking to establish the contrary.

On balance, when the above matters are considered cumulatively, the Tribunal is not satisfied that the applicant at Grafton operates other than a limited service restaurant. Rather, the Tribunal forms the view that Item 8 of Instrument IMMI 17/060 operates to preclude the nomination of the nominee in the applicant’s Grafton operation as the position is in a fast casual restaurant, which is a type of limited service restaurant.
For the sake of completeness, the Tribunal does not accept the assertion of the applicant as to other nomination approvals within the Burrito Bar chain being persuasive, given the particular facts of the present review as have been outlined. Further, the Tribunal notes that it has paid due regard to Departmental policy in assessing the operations of the applicant’s Grafton premises, but it has not done so in an inflexible manner, nor with a slavish ‘tick box’ approach. Rather, the Tribunal has carefully assessed the evidence pertinent to this review in reaching its conclusions.
Accordingly, the Tribunal finds that the nominated occupation of Café or Restaurant Manager (ANZSCO Code 141111) is precluded from nomination due to the operation of the inapplicability condition at Item 8 of Instrument IMMI 17/060. For these reasons, the applicant’s nomination does not meet the requirements of r.2.72(10)(aa) of the Regulations.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
K. Chapman
Member

ATTACHMENT 1 - 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.
ATTACHMENT 2 - EXTRACTS FROM PROCEDURES ADVICE MANUAL 3 (PAM3)
4.8.1.4. Additional advice on hospitality positions and caveats
There are caveats in place for the occupations of Café or Restaurant Manager, Cook and Chef, which exclude the occupation from the subclass 457 programs where the position is based in a limited service restaurant.
A limited service restaurant, as outlined in the instrument, includes, but is not limited to, the following:
·             fast food or takeaway food services;
·             fast casual restaurants;
·             drinking establishments that offer only a limited food service;
·             limited service cafes including, but not limited to, coffee shops or mall cafes;
·             limited service pizza restaurants.
Cook and chef positions are also excluded where they are involved in mass production in a factory setting.

This section explains how the above terms are defined under policy for the purposes of these caveats.
Definitions
What is a fast food or takeaway service?
Under policy, fast food or take away food is defined as food that is quick to cook or is already cooked and as a result can be served as a quick meal or to be taken away – i.e. “a meal to go”.

Such food is to be distinguished from a restaurant or café where people sit and eat meals that are cooked and served on the premises, pay on completion of the meal and with the service provided being an important factor, as well as the food.

Examples of eating establishments considered under policy to provide fast food or takeaway services may include, but are not limited to, fast food chains, fish and chips shops, hamburger shops, kebab shops, takeaway sushi shops, Asian noodle take away shops and fried chicken shops.

Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.
What is a fast casual restaurant?
Fast casual restaurants, sometimes also referred to as fast casual dining outlets, are similar to fast food outlets except the quality of the food and prices of the menu are somewhat higher and they may have a liquor licence.

These restaurants are designed to offer the quality of established restaurants with the informality of fast food stores and speedier service than a full service restaurant. Typically, these outlets:
·             do not provide full table service, with customers ordering their food at a counter even if it is delivered to the table;
·             operate in chains or as franchises and are heavily advertised;
·             offer streamlined menus similar to fast food establishments;
·             offer speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;
·             do not generally employ chefs – with some menu items still mass-produced, even if they are made from better quality and fresh ingredients,
·             cater for special dietary needs unlike fast food establishments; and
·             do not have a drive through facility.
Examples of eating establishments that are considered to be fast casual restaurants may include, but are not limited to fast casual dining franchises which focus on serving a ‘gourmet’ or ‘organic’ version of fast food (e.g. burgers, fried chicken, fish and chips, sandwiches) or food from a particular country (e.g. Mexican, Greek, Italian or Japanese).

Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants
Drinking establishments that offer only a limited food service
Nominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a drinking establishment, such as a pub, a bar, a beer hall or an izakaya.
In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant – with some pubs even marketing themselves as ‘gastropubs’.
Employer sponsored skilled visa programs are not considered appropriate to fill positions in bars/pubs where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Under policy, a drinking establishment is considered to have a limited food service menu where it only provides snacks (e.g. olives, dips, chips, pickles), or a very limited range of food that involves limited preparation (e.g. toasties, tacos, simple pizza or standard hamburgers).
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.
Limited service cafes including a coffee shop or mall cafe
Nominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a café. In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve (e.g. coffee, tea, non-alcoholic drinks). In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.
Employer sponsored skilled visa programs are not considered appropriate to fill positions in cafes where only a limited food service is provided, such as coffee shops or mall cafes – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Under policy, factors adding weight to a finding that an eating establishment is a limited service café include that the café:
·             is located in a mall;
·             is primarily a coffee shop (that is, an establishment that focuses on serving hot beverages such as tea or coffee) ;
·             have a limited food menu that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).
By contrast, full service cafes are likely to have a comprehensive food menu and develop most dishes from scratch in a full commercial kitchen.
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurant below.
Limited service pizza restaurant
Nominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a pizza restaurant. In some cases, these establishments will provide mainly a takeway pizza service with limited other menu items and/or only limited table services. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.
Employer sponsored skilled visa programmes are not considered appropriate to fill positions in pizza restaurants where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Under policy, factors adding weight to a finding that an eating establishment is a limited service pizza restaurant include that the restaurant:
·             does not serve non-pizza related items;
·             has minimal onsite seating, with takeway the main focus of the business;
·             clients pay at the counter;
·             clients eat pizza from pizza boxes even if on the premises.
By contrast, full service pizza restaurants are likely to have a comprehensive food menu and develop most dishes from scratch in a full commercial kitchen.
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants.
What is mass production in a factory setting
An additional caveat applies to the occupations of cook and chef which excludes positions from use under where they involve mass production in a factory setting – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Cooks are expected to be involved in preparing and cooking food from scratch rather than, for example, just heating pre-prepared meals, or making basic food stuffs in a factory setting.
Under policy, mass production refers to the making of products using assembly line techniques, with workers working on an individual step of the production process. Such production techniques usually also involve the use of tools, machinery and other equipment, usually automated.
If a nominated position for a Cook or a Chef is based in a factory setting, officers will need to check whether or not this additional caveat applies.
Distinguishing between full service and limited service cafés/restaurants
The sections below are designed to assist officers to determine whether the nominee will be based in a restaurant or café, or in one of the locations that is specifically excluded via a caveat on the occupation listed in the relevant legislative instrument.

Officers will need to make an assessment as to the location of the nominated position, based on the individual circumstances of the case and taking into account all the material available in relation to how the business actually operates. The factors outlined below are considered critical in terms of distinguishing between full service and limited service café/restaurants.

Note:
·             The key factors are the way in which the food is ordered, served and consumed, not the quality of the food.
·             If a food service business operates through a chain or franchise arrangement, it is possible that some outlets will be fast food or takeaway businesses while others are cafes or restaurants. It is therefore important for officers to assess this issue on a case by case basis. In this situation, officers also need to ensure that any supporting evidence provided, relates to the specific outlet that is the subject of the nomination, rather than another premises in the chain.
Factors supporting classification as a restaurant or café
Under policy, factors that may be relevant to an assessment that the position is based in a café or restaurant include:
·             how the business is marketed to the public
·             the business is mainly engaged in providing food and beverage serving services for consumption on the premises, even if take away services are available
·             meals are made on-site from raw ingredients, portion size may vary depending on the cut/produce size available, involving substantial preparation (for example, peeling, chopping, de-boning, grating), seasoning and cooking - using a range of equipment and techniques depending on the nature and size of the produce that is being prepared
·             a comprehensive menu is available which incorporates a broader range of ingredients that are delivered fresh to the premises
·             table service is provided by a waiter/waitress – that is customers are seated at restaurant/café tables and provided with assistance while seated as required (i.e. provided with menus, asked for order, provided with additional items/assistance where required and provided with bill)
·             customers pay after eating
·             the business holds a liquor licence and has a comprehensive selection of alcoholic beverages available via table service
·             the menu caters for special dietary requirements and varies from time to time depending on availability of produce, and seasoning
·             if the menu is limited, there is a focus on organic or specialty ingredients that are prepared onsite or ‘gourmet products’, and/or prices are higher than would be expected at a takeaway establishment
·             the size of portions may also vary from time to time given the human element involved in the preparation and cooking of the items
·             the business has a full commercial kitchen and significant food storage facilities for fresh ingredients
·             the business has had their performance recognised via restaurant industry awards
·             employment at the business has been accepted by TRA as skilled work experience, or by a recognised training institution as sufficient to support study in a Certificate III in Commercial Cookery
·             where a chain, different outlets are designed differently to reflect the local customer base and outlets are largely owned by the company rather than franchisees.
Factors supporting classification not as a restaurant or café
Under policy, factors that may be relevant to an assessment that the position is not a restaurant or café (i.e. that it is based in a fast food or take away service, or a fast casual restaurant) include that:
·             the business does not offer full table service
·             the business is a well-known fast food or fast causal restaurant chain
·             the business markets itself as a fast food restaurant or a fast casual restaurant, within significant levels of advertising
·             the business is primarily a coffee shop
·             operate a franchise or restaurant chain, where different outlets are largely identical in design
·             the business offers speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;
·             the business mainly engages in providing food services ready to be taken away for immediate consumption with only limited onsite seating provided (if any)
·             the business offers streamlined or limited menus, with food prepared according to a standardised format or that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).
·             the business does not generally employ chefs – with food still mass-produced even if better quality and fresh ingredients are used than is typical in a fast food context , with special dietary needs often catered for
·             the business does not have a full commercial kitchen – and only has equipment for heating/final preparation of food
·             the business is located in a food hall and food courts that consists of fast food and take away services, as opposed to award winning/high profile restaurants that can now be co-located in some shopping malls
·             customers are required to order at a counter and pay before eating
·             limited seating and/or only communal tables shared with other business is provided
·             meals are served in packaged form and/or there is a focus on ‘street food’ (i.e. handheld foods)
·             meals are served in disposable containers (although some outlets may provide cutlery and crockery for customers dining in the establishment)
·             reservations are not required or provided for
·             food is distributed from a central location
·             food is apportioned into predetermined quantities and sizes, seasoned to a fixed standard and delivered, pre-packaged, with preparation on-site being limited to thawing, heating and/or basic cooking (e.g. frying or grilling)
·             if heating or cooking is required, cooking times for the items are usually pre-arranged for a set duration, as the time it takes to cook through can be predetermined given the control over portion size that is packaged prior to delivery to each venue
·             employees of the business are covered by the Fast Food Industry Award
·             the business has had their performance recognised via fast food industry awards.
Officers are reminded that the above considerations are for guidance only and are not intended to be an exhaustive list. Officers must consider, on an individual basis, all circumstances of which they are aware, or should be aware, and which are relevant to the determination, and must not apply these factors inflexibly.

[2020] AATA 530

27 February 2020

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