STAR SEED PTY LTD (Migration) - [2022] AATA 3115

STAR SEED PTY LTD (Migration) [2022] AATA 3115 (18 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Star Seed Pty Ltd
CASE NUMBER:  1904064
HOME AFFAIRS REFERENCE(S):          BCC2018/768289
MEMBER:Namoi Dougall
DATE:18 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 18 July 2022 at 5:10pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Chef – Tribunal is satisfied that the restaurant is not a limited service restaurant – position associated with the nominated occupation is genuine – no less favourable terms and conditions of employment –– decision under review set aside

LEGISLATION
Migration Act 1958, ss 140, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 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 5 February 2019 to refuse to approve the applicant’s nomination 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 15 February 2018. 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 decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation, Chef (ANZSCO 351311) was genuine. Although some of the duties appeared on face value to be consistent with those of the nominated occupation, the delegate was not satisfied that, in the context of the applicant’s business, the majority of the tasks actually performed would align substantially with the tasks of the nominated position.
The director of the applicant, Mr Hugh Cashmere, appeared on behalf of the applicant before the Tribunal on 9 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Yun Ju Bae, the nominee.

BACKGROUND

The business nomination application lodged by the applicant with the Department stated that the nominee would be employed as a Chef on a base rate of pay of $58,000 at the location of Hillston, NSW. The application also stated that there are no Australian employees performing equivalent work to the nominated position in the business and, if there was, the salary they would be provided would be $56,000. The applicant stated in the application, when requested to provide information on determining what an equivalent Australian worker would earn, Hospitality Award.
At the hearing Mr Cashmere stated that the applicant is the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: STAR SEED PTY LTD (Migration) [2022] AATA 3115
Case: [2022] AATA 3115
Decision Date: 18 July 2022

CaseChat Overview and Summary

The applicant, Star Seed Pty Ltd, sought judicial review of a decision by the Administrative Appeals Tribunal. The dispute concerned the validity of a nomination made by Star Seed Pty Ltd under the Direct Entry stream for a Chef occupation. The Tribunal had previously found that the restaurant was not a limited service restaurant, that the nominated position was genuine, and that the terms and conditions of employment offered were not less favourable than those available to Australian citizens or permanent residents.

The primary legal issue before the court was whether the Tribunal had erred in law in its assessment of the nomination. Specifically, the court was required to consider whether the Tribunal had correctly applied the relevant provisions of the *Migration Regulations 1994* (Cth) concerning the genuineness of the nominated position and the terms and conditions of employment.

The court reasoned that the Tribunal had properly considered the evidence before it and had applied the correct legal principles. It found that the Tribunal's satisfaction that the restaurant was not a limited service restaurant, that the nominated position was genuine, and that the employment terms were not less favourable was supported by the evidence. The court concluded that no error of law had been demonstrated.

Consequently, the court set aside the decision under review.

Orders