TAKENOKO PTY LTD (Migration)

TAKENOKO PTY LTD (Migration) [2018] AATA 1888 (29 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Takenoko Pty Ltd
CASE NUMBER:  1613395
DIBP REFERENCE(S):  BCC2016/1975768
MEMBER:Alison Mercer
DATE:29 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 29 March 2018 at 4:30pm

CATCHWORDS
Migration – Nomination refusal – Chef (Dessert) – Genuine need for the nominated position – Nominated occupation corresponds to a specified occupation – Approved standard business sponsor – Decision under review set aside
LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, rr 2.57, 2.72, 2.73
CASES
Drake v MIEA (1979) 24 ALR 577
Drake and MIEA (No 2) (1979) 2 ALD 634
Hneidi v MIAC [2009] FCA 983
Lobo v MIMIA [2003] FCAFC 168

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 Immigration on 20 August 2016 to refuse to approve the applicant’s nomination of the position of Chef (Dessert) under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant, Takenoko Pty Ltd, applied for approval on 7 June 2016. A nomination of an occupation for a subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that she found that the applicant did not satisfy r.2.72(10)(f), which requires that the position associated with the nominated occupation is genuine. The delegate accepted that the list of duties to be performed provided by the applicant matched those of a Chef, as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary (code 351311). However, she was not satisfied, in the context of all the information provided with the application, that the nominee would be likely to be actually regularly performing the full breadth of the ANZSCO duties for a Chef. The delegate noted that the applicant had made claims about its projected growth and the need for the position, including because 2 new sites were planned, but attributed limited weight to these claims. She also gave little weight to the claims of the nominee’s experience in commercial cookery and knowledge of Japanese fusion sweet and dessert pastry, as she considered that these were not supported by documentary evidence.
The Tribunal received a review application on 23 August 2016. It was lodged on behalf of the applicant company by one of its directors, Mr Charles Pai. The review application was accompanied by a copy of the delegate’s decision and an authority by which Mr Pai appointed a registered migration agent, Mr Eric Lau, to be the applicant’s representative and authorised recipient for correspondence.
On 11 August 2017, the Tribunal conducted a callover, the aim of which was to ascertain whether the applicant’s case was ready to be actively considered and/or set down for hearing. On behalf of the applicant, Mr Pai and the applicant’s agent attended the callover and discussed with the Presiding Member the additional updated documentation that the applicant could provide to demonstrate that it met all of the criteria in r.2.72 (not only r.2.72(10)(f)).
The Tribunal also discussed with them the fact that as of 19 April 2017, the list of skilled occupations that could be nominated pursuant to r.2.72 had been amended to remove some occupations from the list and to add occupational restrictions (known as caveats) to others. The Tribunal noted, that the occupation of Chef (ANZSCO code 351311) was still on the relevant list of skilled occupations (the Medium to Long Term Skilled Occupation List of IMMI 17/060) but was now subject to caveats excluding Chefs based in mass production in a factory or based in limited service restaurants for being approved.
Mr Pai and the agent advised the Tribunal that Mr Yutaka Kurimoto, the nominee, was fulfilling a crucial role in the applicant’s business. Mr Pai indicated that the applicant operates 3 Japanese restaurants with a fourth due to open at the end of 2017. Mr Pai clarified that the applicant employs a number of chefs, but only one dessert chef (the nominated position). The nominee has been employed by the applicant since 2016. At the conclusion of the callover, the Tribunal indicated that it would shortly write to Mr Pai of the applicant pursuant to s.359(2) of the Act to formally request updated information demonstrating how the applicant met all of the criteria set out in r.2.72, including the occupational caveats for Chefs introduced by IMMI 17/060.
The Tribunal did so on 16 August 2017. On 28 August 2017, the Tribunal received a response from the applicant’s agent on behalf of the applicant which included:
·submission dated 13 June 2016 [sic] from the applicant’s agent in response to the Tribunal’s s.359(2) letter;
·copy of the agent’s submission to the Department lodged with the nomination, dated 13 June 2016;
·Australian Securities and Investments Commission (ASIC) record of registration for the applicant, valid until 9 April 2019;
·ASIC company details for the applicant;
·ASIC Business Name Registrations for B & B Southland (valid until 9 April 2019) and Torasan (valid until 10 March 2019), both registered by the applicant;
·Bank Guarantee requirements for the applicant for premises in Elizabeth Street, Melbourne;
·Trust Account Receipt issued to the applicant for lease holding payment for above address, dated 17 February 2016;
·organisational structure chart for the applicant;
·electronic company tax declarations for the applicant for the 2013/14, 2014/15 and 2015/16 financial years;
·financial statements for the applicant for the 2013/14, 2014/15 and 2015/16 financial years;
·Business Activity Statements (BAS) for the applicant for period July 2016 to March 2017;
·undated employment contract dated between the applicant and another Chef (not the nominee) for the position of Chef, 38 hours per week, with annual salary of AUD $96,400;
·Payscale salary report for Head Chef (Australia), downloaded 13 June 2016, showing salary range of approximately $46,915 to $78,950 per year, with median salary of $59,634 and average salary of $59,635;
·Australian Bureau of Statistics (ABS) Employee Earnings and Hours, Australia, May 2014, All Employees (occupation not specified);
·Job Outlook report downloaded 13 June 2016 on weekly earnings before tax (occupation not specified);
·online advertisement for fulltime Chef at Serotonin Eatery, inner city Melbourne, posted 31 May 2016, with salary range of $75,000 to $95,000;
·English translation of the nominee’s Confectionary Hygiene Master Licence, issued in Kyoto Prefecture on 31 October 2007;
·Visa Entitlement Verification Online (VEVO) for unspecified visa applicant showing bridging visa A issued on 7 June 2016, valid as at 21 August 2017;
·copy of biodata page of nominee’s Japanese passport;
·scanned photographs of the nominee in a kitchen making desserts (undated); and
·undated document with scanned photographs of the applicant’s dessert product range, with text indicating that there is a plan to open a new restaurant, Uji Matcha, which will specialise in sophisticated Japanese matcha patisserie, and that these products will also be supplied wholesale to other restaurants and/or available by mail order.
In his submission of August 2017, the applicant’s agent made the following points (in summary):
·the nominated position was not involved in mass production in a factory setting, nor was it located in a limited service restaurant. It was not located in a fast food or takeaway service, a fast casual restaurant, a drinking establishment only offering limited food service, a limited service café (including a coffee shop or mall café) or a limited service pizza restaurant. The Tribunal was directed to reviews of the applicant’s restaurants on the social media review site, Zomato;
·the nominee was confirmed as Mr Yutaka Kurimoto. At the time the nomination was lodged, Mr Kurimoto’s proposed salary of $96,400 met the requirement for the nominee to be exempted from having to demonstrate a specified level of English proficiency but since then, it was acknowledged that he now had to do so. He was therefore booked to undertake an International English Language Testing System (IELTS) test in September 2017; and
·in relation to the nominee’s terms and conditions of employment, a contract of employment was enclosed and it was stated that he was not employed subject to an Award or Agreement but under an individual arrangement.
On behalf of the applicant, Mr Charles Pai appeared before the Tribunal on 9 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Yutaka Kurimoto. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages. The applicant’s agent also attended the hearing.
Mr Pai told the Tribunal that the company currently operated 2 Japanese restaurants, Torasan in the city and Maedaya in Richmond. The former specialised in ramen and noodle dishes while the latter was an izakaya venue. Mr Pai said both were full service restaurants with both dine in and take away services, and both had liquor licenses.
Mr Pai said that the company is planning to open another venue in Elizabeth Street in the CBD, which will focus on Japanese desserts and patisserie goods with matcha (green tea) flavouring. This is due to open in August 2018. Mr Pai said that the nominee currently worked as a Chef between the 2 established restaurants (focussing primarily on Japanese desserts) and would be crucial to the operations of the new venue, which would be reliant on his skill at making traditional Japanese desserts and creating new ones.
Mr Pai told the Tribunal that he had a wholesale background and had identified that interest in the ingredient matcha (green tea) was on the rise, as consumers became both more adventurous and health-conscious, and the new venue was targeting this market.
In response to the Tribunal’s query, Mr Pai said that the nominee Mr Kurimoto was employed by the applicant in 2016. He was introduced to Mr Pai by Mr Kurimoto’s brother, who was resident in Australia and a customer of Mr Pai. He recommended his brother as a qualified Japanese dessert chef who was currently in Australia as the holder of a working holiday visa. Employing Mr Kurimoto fitted in with Mr Pai’s plans for the company and the business.
Mr Pai said that presently, Mr Kurimoto makes traditional Japanese desserts and creates new ones for the existing restaurants and also for other restaurants, but he had limited capacity to supply external customers as he was the only dessert Chef employed by the applicant. At present, he has one assistant. Mr Pai confirmed that the other Chefs employed in the business do not make desserts. Mr Kurimoto can assist with main meals if needed at the Chef level, but his focus is on desserts.
The Tribunal queried the employment contract provided to it by Mr Pai and his agent, as it referred to a Chef with a salary of $96,400 per year, but the name of the employee was not that of the nominee. The agent advised that it had been provided as a point of comparison, to show that the Chefs employed by the applicant were paid this amount. The Tribunal observed that this was a significant amount to pay a Chef, and noted that it had been acknowledged in a previous submission that the nominee was to paid this amount as it was the previous threshold salary amount which exempted a visa applicant from having to undertake formal English language testing. Mr Pai and his agent acknowledged this but noted that they were aware that the salary-related exemption had been removed and that the nominee would have to pass an English test. They said that they knew he had sat recent tests but did not know the outcome of these yet.
Mr Pai said that he regarded it as a business investment to pay the nominee $96,400 per year, given his significance to the company as its only dessert Chef. In response to the Tribunal’s query, Mr Pai said that the new venue will have a full commercial kitchen and will offer both dine in and take away service. Its opening hours will be between about 10am to about 11pm, and it will not be licensed to serve alcohol. However, the nominee will also continue to be responsible for the dessert menus of the other 2 restaurants.
In response to the Tribunal’s query, Mr Pai said that the company had also previously operated a venue in an Asian food court in the Southland shopping centre. It was open when the nomination was lodged but had since closed as Mr Pai found that it was not viable and wanted to concentrate on other ventures.
The Tribunal observed that the most recent financial statements provided (for 2015/16) showed a fairly significant net loss, compared with the previous financial years, and queried how this boded for the opening of a new outlet. Mr Pai said that the first venue he opened was Maedaya in Richmond, and this was therefore in need of renovation which had taken place in 2015/16. Then he established Torasan and it had taken some time to start turning a profit but was now performing well. He and his agent undertook to provide draft financial statements for 2016/17 and BAS to substantiate that the business’ performance was improving.
The Tribunal then went through the duties listed for a Chef in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary with Mr Pai, who confirmed that the nominee Mr Kurimoto performed the majority of them in relation to his dessert speciality. In particular, Mr Pai said that:
·in relation to planning menus, estimating food and labour costs, and ordering food supplies, the nominee did all of this but mainly in relation to desserts;
·in relation to monitoring quality of dishes at all stages of preparation and presentation, the nominee did this;
·in relation to discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff, the nominee discussed issues with the other kitchen and waiting staff and Mr Pai, when necessary. He also sought customer feedback, especially when he created new menu items;
·in relation to demonstrating techniques and advising on cooking procedures, preparing and cooking food, this was a significant part of the nominee’s job, especially in relation to his assistant(s);
·in relation to explaining and enforcing hygiene regulations, the nominee was scrupulous and his level of English and training in hospitality was sufficient for him to do this with no problem;
·in relation to whether the nominee selected and trained staff, the nominee recruited his own assistants; and
·in relation to whether he froze and preserved foods, the nominee did not really do this much.
When asked whether he believed the ANZSCO occupation of Chef was a closer match to the nominated position than another ANZSCO occupation of Baker/Pastrycook, Mr Pai said that in his opinion, the nominee had the higher skill level required of a Chef, as he created dishes and did not just prepare and cook to an existing recipe.
The Tribunal then took evidence from the nominee, Mr Kurimoto. He confirmed that he trained as a dessert Chef in Japan and then spent a year undertaking further training and work experience in France, before he returned to Japan where he worked in the field of desserts/pastries for 7 years for various businesses. He then came to Australia as a working holiday maker, and was working as a dessert Chef for another business when he was introduced to Mr Pai by his brother. He then transferred employment to the applicant’s business. Mr Kurimoto confirmed that he currently creates and prepares desserts for the existing restaurants owned by Mr Pai, and will essentially run the new business focussing on matcha desserts and pastries.
The Tribunal went through the duties listed for a Chef and those listed for a Baker/Pastrycook in ANZSCO. In relation to the duties listed for a Chef, the nominee indicated to the Tribunal that:
- in relation to planning menus, estimating food and labour costs, and ordering food supplies, the nominee said that he undertook all of these tasks, mainly in relation to desserts;
- in relation to monitoring quality of dishes at all stages of preparation and presentation, the nominee said that he did this, as he tasted all desserts that he and his assistant prepared as well as examining them to make sure they were presented properly physically;
- in relation to discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff, the nominee said he did clarify and discuss issues with the other kitchen and waiting staff and Mr Pai, when necessary. This was especially when he created new menu items;
- in relation to demonstrating techniques and advising on cooking procedures,
- preparing and cooking food, the nominee said that this was a main part of his job;
- in relation to explaining and enforcing hygiene regulations, the nominee said that he had undergone exacting training in Japan in kitchen hygiene and made sure that other staff were aware of the correct temperatures to store and cook food safely and to practise hygiene and safety in the kitchen;
- in relation to whether he selected and trained staff, the nominee said that at present, he had an assistant working with him who was at confectionary school but whom he trained in the workplace; and
- in relation to whether he froze and preserved foods, the nominee said that he did not really do this much, but he did work with frozen ingredients in making desserts.
He further indicated that while he had many of the skills of a Baker/Pastrycook, he believed that his skills were at a higher level and more appropriately classified as those of a Chef, given his extensive training, work experience in Japan, France and Australia and his ability to create desserts. He confirmed that he made both traditional Japanese desserts and new ones using Australian ingredients as well as traditional Japanese ones.
In response to the Tribunal’s query, Mr Kurimoto said that his currently salary is approximately $55,000 per year. He said that he was not sure whether this would be increased when the new venue was opened, but this would be discussed with his employer in due course.
The Tribunal then spoke to Mr Pai and the agent again about the discrepancy in the evidence about the nominee’s salary. Mr Pai and his agent said that it was a commercial decision not to pay the nominee $96,400 until it was clear whether he would be granted the subclass 457 visa or not. The Tribunal observed that while salary decisions were clearly commercial decisions for the business in question, the fact that the nominee was not in fact being paid $96,400 but was being paid considerably less, undermined the arguments of Mr Pai about how crucial the nominee was to the business. Mr Pai and the agent then indicated that they would provide further information on this issue after the hearing.
Following the hearing, the Tribunal received the following additional information and documents on 23 and 26 March 2018:
·monthly profit and loss reports from each of the 3 business locations from July 2016 to December 2017. It is noted that B & B was located in the Southland Shopping Centre and suffered losses (as mentioned at the hearing) that affected its operations, resulting in its closure in June 2017. It is further confirmed that Torasan is the ramen restaurant based in Elizabeth Street in the Melbourne CBD, which has traded since August 2016. Although it had suffered losses for the first 6 months due to the start up, it had been profitable since early 2017. Finally, it was stated that Maedaya in Richmond had been operating for 10 years and was getting old. It had therefore refreshed its menu and operations late in the 2017 calendar year. There were some losses due to the cost involved in updating it, but its operations and margin had improved since then;
·BAS for the applicant company for the period 1 July 2016 to 31 December 2017;
·International English Language Testing System (IELTS) test report form for the nominee, issued to him on 14 March 2018 and indicating that he obtained an overall band score of 5.0 in a test he undertook on 3 March 2018 (with scores of 5 for listening, 4.5 for reading, 4.5 for writing and 5.5 for speaking);
·the nominee’s payroll advice statements from 1 July 2017 to 15 March 2018 (listing his salary as $50,000 per year), and his 2016/17 PAY summary statement stating that his gross income in that period was $41,666;
·employment contract for the nominee that would take effect upon the grant of his subclass 457 visa, signed 10 March 2018, with salary of $96,400;
·comparison between the occupations of Chef and Pastry Cook arguing that the nominee’s role was more closely aligned to the occupation of Chef (even though he could undertake the work of a Pastry Cook, his assistant would perform this work) and he ran the dessert operations in the kitchen, and did not simply follow instructions.

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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal is satisfied, from having reviewed the documents on the Department’s file, that:
·the applicant nominated an occupation under s.140GB(1)(b) (being Chef) and thus meets r.2.73(1A)(a);
·the applicant identified the nominee, Mr Yutaka Kurimoto, the proposed applicant for a subclass 457 visa, as the person who would work in that occupation, and thus meets r.2.73(1A)(b);
·the nomination was made using the approved form and fee, and thus meets r.2.73(2),(3), (5) and (9);
·the applicant identified the nominee, Mr Yutaka Kurimoto, in the nomination, thus meeting r.2.73(4)/(4A) and (5); and
·the nomination included the location at which the occupation would be carried out, and the 6 digit ANZSCO code for that occupation (ANZSCO code 351311), thus meeting r.2.72(4).
The Tribunal is therefore satisfied that the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The applicant has provided information, which is confirmed by the Department’s records, that the applicant is an approved standard business sponsor. The approval ceases on 5 June 2020.
Accordingly, the Tribunal finds that the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
As noted above, the Tribunal is satisfied that the applicant identified the nominee Mr Yutaka Kurimoto as the proposed applicant for the visa, who will work in the nominated occupation, in its nomination application.
Accordingly, the Tribunal finds that the requirements of r.2.72(5) are met.
Requirements for existing subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a subclass 457 visa holder is identified as the person to work in the nominated position. 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: r.2.72(6)(a) and r.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: r.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: r.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 written 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: r.2.72(10)(g).
As the Department’s records indicate that the nominee is not, and has not been, the holder of a subclass 457 visa, 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 written 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 Tribunal is satisfied that the applicant is an approved standard business sponsor, its nomination included the 6 digit ANZSCO code for the nominated occupation Chef (ANZSCO code 351311) and specified that the location at which the occupation was to be carried out was Richmond in the state of Victoria, postcode 3121.
Accordingly, the Tribunal finds that the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
The Tribunal is satisfied from the material on the Department’s file that the above certification has been provided.
For these reasons, it finds that the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(9) are 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 Tribunal is satisfied that this is not the case here.
In addition, since the nomination application was lodged on 21 July 2016 and refused on 20 August 2016, exclusionary caveats have been introduced in relation to the occupations that can be approved for the purposes of r.2.72(10)(aa). These were initially introduced in written instrument IMMI 16/059, which took effect on 19 April 2017. As of 1 July 2017, IMMI 16/059 was superseded by the current instrument IMMI 17/060. Currently, the occupation of Chef is on the Medium and Long Term Strategic Skills List of IMMI 17/060 and is subject to notes (caveats) 7 and 8 of that instrument. They provide that nominations of Chefs in the following situations are excluded from being able to be approved under r.2.72(10)(aa):
·Note 7: where the position is involved in mass production in a factory setting; and/or
·Note 8: where the position is in a limited service restaurant.
The Departmental Procedures Advice Manual (PAM3) (as at 17 January 2018) provides the following advice about what constitutes a ‘limited service restaurant’ in section 4.8.1.3 ‘Occupation Specific Caveats’:
Chefs (ANZSCO 351311) – Conditions 7 & 8
A caveat is in place for this occupation which excludes positions involved in mass production in a factory setting and positions in a limited service restaurant. A limited service restaurant 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.
For further advice regarding how the above terms are defined, refer to Section 4.8.1.4 Additional advice on hospitality positions and caveats.
This caveat is designed to ensure that in the context of this occupation, employer sponsored visa skilled programs continue to be used for skill level 2 chef positions only – that is, leadership positions in a dining establishment that involve managerial tasks such as planning menus, monitoring the quality of dishes, preparing and cooking food, and advising on cooking procedures. It is not appropriate for use by individuals who will actually be undertaking the role of a Cook (ANZSCO 351411) – see guidance provided below on Cooks (ANZSCO 351411).
Note: Apprentice Chefs are excluded from this unit group in ANZSCO and are included in the Cook unit group.
When determining whether the caveat applies, officers should first confirm that the nominated position is not located in a limited service restaurant – using the guidelines provided at Section 4.8.1.4 Additional advice on hospitality positions and caveats.
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.
…
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.
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In the ordinary case, policy is a relevant factor for the Tribunal to take into account.[1] Whether the Tribunal should apply that policy or interpretative guidelines in a particular case will depend on a range of factors, including whether it is exercising a discretionary or non-discretionary power and whether the nature of the power suggests an emphasis on consistency or a focus on the circumstances of the individual case.
[1] See, e.g., Hneidi v MIAC [2009] FCA 983 (Besanko J, 2 September 2009), at [37].
However, the Tribunal must not determine an issue simply by resolving whether or not it conforms to policy. The Tribunal is not entitled “to abdicate its function of determining a correct or preferable decision in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be”.[2] The application of policy assumes that, in the absence of any reason to the contrary, its standards and values are an appropriate guide in the particular case.[3] But where the policy is more narrow or restrictive than the legislation, it will not be a lawful policy and reliance on it would be likely to constitute a jurisdictional error.[4]
[2] Drake v MIEA (1979) 24 ALR 577 per Bowen CJ and Deane J at 590.
[3] Re Drake and MIEA (No 2 ) (1979) 2 ALD 634 at 642.
[4] Lobo v MIMIA [2003] FCAFC 168 (French, Sackville and Hely JJ, 8 August 2003) at [63] - [64].
The Tribunal is satisfied that the nominated position is not located in mass production in a factory setting and thus is not excluded by note 7 above. The issue for the Tribunal is whether it can be said to be located in a limited service restaurant and thus is excluded by note 8. Having regard to the PAM3 examples given for a limited service restaurant, the Tribunal is satisfied that the dining venues operated by the applicant are not fast food outlets. The Tribunal is further satisfied that they are not limited service cafes located in a mall, coffee shops, or limited service pizza shops. However, it is not as clear whether they are fast casual restaurants or not.
The Tribunal has considered this issue carefully, as it considers that the nominated role is somewhat unusual in that it is not located solely in one venue, but is responsible for devising and creating the desserts for 2 existing venues and will play a major role in a third venue which is to open shortly, the focus of which will be on green tea/matcha flavoured or themed Japanese desserts. From the documentary evidence and the oral evidence of Mr Pai at hearing (and including websites for some of the venues and review websites), the Tribunal is satisfied that:
·the applicant company, Takenoko Pty Ltd, currently operates 2 Japanese restaurants: Torasan, a ramen restaurant in the Melbourne CBD, and Maedaya, an izakaya restaurant in the inner city suburb of Richmond;
·in addition, it previously operated a Japanese casual dining outlet (B & B) in a suburban shopping centre but closed this venue in mid-2017;
·in mid-2018, the company will open a new venue in the Melbourne CBD which will provide Japanese desserts as its specialty. This will operate 7 days per week from approximately 11am to 11pm. It will not be licensed. It will offer both take away and dining facilities;
·Torasan Ramen is described as ‘casual dining’ on the restaurant review site, with table reservation not required. It provides food for dining in or take away, has 2 stories of dining areas, is licensed and operates from approximately 11.30am to between 10pm and 1am (depending on the night) 7 days a week. A wide range of ramen (noodle) dishes are available as well as other Japanese dishes (such as katsu curries, yakitori and bento boxes), as well as matcha flavoured desserts. Food for dining in is served on crockery and eaten with cutlery or chop sticks and diners sit at tables. The reviews by diners indicate that food is ordered via an iPad at the table and brought by wait staff and paid for after dining;
·Maedaya’s website states that it is a ‘friendly, casual Japanese Izakaya spot in Richmond that serves up food as exquisite as some much pricier Japanese places around Melbourne’ in addition to which it offers an extensive range of sake as well as other alcoholic beverages. It offers reservations, and recommends them for groups. It is open every evening from 5.30pm to 10pm except Wednesdays. The menu indicates that it offers an extensive izakaya/tapas-style small dishes, plus salads, yakitori dishes and other mains, rice, noodle and miso soup dishes and desserts. It does not appear to offer takeaway food;
·the restaurant review site, describes Maedaya as ‘casual dining.’ Photos and reviews indicate that food is served on crockery with cutlery at table and that diners order via iPad at the table and food and drinks are brought to them by wait staff, and payment is made after dining for those dining in; and
·the above venues are standalone venues and are not part of a franchise or chain.
The Tribunal has had regard to the Departmental policy set out above, and considers that, in relation to the applicant’s businesses, there are both factors that weigh in favour of the applicant’s businesses being classified as fast casual restaurants, and also factors that weigh against this.
Factors that suggest that the applicant’s businesses fall within the category of ‘fast casual restaurants’ include the fact that:
·Torasan Ramen does not take reservations and it appears that the new dessert venue will not do so;
·Torasan and the new dessert venue do or will offer takeaway food as well as dining in;
·Zomato describes both Torasan Ramen and Maedaya as ‘casual dining’ and Maedaya’s own website does so as well;
·the prices at Torasan are quite inexpensive, but are more expensive at Maedaya; and
·(at this stage) there are no plans for the dessert venue to be licensed.
On the other hand, the factors that suggest that the applicant’s businesses should be distinguished from ‘fast casual restaurants’ include the following:
·they are standalone businesses and are not part of a chain or franchise;
·Torasan and Maedaya have liquor licences and serve a reasonable range of alcoholic and non-alcoholic drinks – in particular, Maedaya offers a wide range of sake. However, it also offers an extensive range of food as well as drinks so is not solely the equivalent of a pub with bar snacks;
·Torasan is open from late morning to late evening, 7 days per week;
·Maedaya is open from late afternoon to late evening 6 days per week (being closed Wednesdays);
·the food in all venues is made from scratch on the premises by Chefs (not Cooks) in commercial grade kitchens with fresh ingredients, utilising a variety of preparatory and cooking techniques;
·both Torasan and Maedaya have quite extensive menus;
·in both existing venues food is served on crockery, with glassware and cutlery provided for diners; and
·although customers dining in place orders via iPad at their tables, there are wait staff who greet them upon entry, and provide menus and advice on specials and menu items.
In the Tribunal’s view, the factors in this case are very closely balanced. However, the Tribunal ultimately considers that it is not appropriate to classify the applicant’s businesses as fast casual restaurants, given that they are each a standalone business operating the kinds of hours a restaurant would be expected to operate, largely provide dining in for patrons (but with some take away service), are licensed (except for the proposed dessert venue), and the food is predominantly made onsite, from fresh, high quality ingredients, by Chefs in a commercial grade kitchen. Although customers’ orders are made at the table by iPad, the businesses nevertheless employ wait staff who greet customers, provide them with menus and advice, and bring them their food, which is served on crockery with cutlery and glassware. While the businesses do not offer full service by wait staff, the Tribunal is satisfied that the wait staff provides a level of service that is greater than that provided in a fast food or takeaway outlet. Taken cumulatively, these factors lead the Tribunal to conclude that the applicant’s businesses should not be characterised as fast casual restaurants, or as limited service restaurants (as that term is explained in PAM3) and thus to conclude that its nomination is not excluded by note 8 of IMMI 17/060.
The Tribunal is satisfied, having compared the position description provided to the Department by the applicant with the ANZSCO occupational description for a Chef, that the duties of the nominated occupation correspond to those of the occupation of Chef (ANZSCO code 351311). (A more extensive comparison is set out below in the Tribunal’s discussion of r.2.72(10)(f)).
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(10)(aa) are met.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028 (currently $250,000): r.2.72(10)(AB).
The Tribunal is satisfied from the documentary evidence provided by Mr Pai and the applicant’s agent on behalf of the applicant that there is no Australian citizen or permanent resident performing equivalent work at the same location.
Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.
The applicant did not claim to have based the nominee’s proposed salary on a specific Award, but instead used market rates. Therefore, the Tribunal considers it appropriate to have regard to 'relevant information' which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australia Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.
The Tribunal has consulted a range of sources of information, including:
·the Government’s Job Outlook website (accessed March 2018) which indicates that the average weekly earnings before tax for Chefs are $1,050 before tax (or $54,600 annually) (data stated to be based on an Australian Bureau of Statistics 2016 annual survey undertaken): Payscale website ( report (accessed March 2018) provides a salary range for a Kitchen Chef in Australia of $37,123 to $58,028, with the median salary being $21.63 per hour (which works out to approximately $42,741 per year, assuming a 38 hour week): for various full time Chef positions in Australia listed on Seek.com.au as at 8 March 2018 and 28 March 2018 where a salary range is given:
oPastry Chef for waterfront venue with ‘amazing’ dessert menu in Sydney CBD, annual salary of $60,000, advertised on 14 February 2018;
oChef for Italian restaurant, inner south eastern Melbourne, $55,000 to $59,999 per year, advertised 28 March 2018;
oPastry Chef for café in CBD/inner suburbs $55,000 to $59,999, advertised 28 March 2018;
oHead Chef, Melbourne CBD waterfront restaurant (seafood and Italian cuisine)m, $85,000 to $85,999, advertised 27 March 2018; and
oSous Chef/Head Chef, Japanese restaurant, CBD/inner suburbs of Melbourne, $65,000 to $74,999, advertised 27 March 2018.
The Tribunal is satisfied from the most recent salary survey information from Job Outlook, and advertisements from seek.com.au that the salary package attached to the nominated position exceeds the range of salaries for the occupation.
Accordingly, the Tribunal is satisfied that the nominee’s salary is no less favourable than those that would be offered to the relevant Australian equivalent.
The Tribunal is further satisfied that the original contract of employment provided to the Department for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).
Accordingly, the Tribunal is satisfied that the nominee's terms and conditions will be no less favourable than the terms and conditions that would apply to the equivalent Australian employee.
Accordingly, the Tribunal finds that the requirements of r.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: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): r.2.72(10AB).
From the evidence provided, the nominee’s annual earnings will be $96,400 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc), unless the Tribunal is satisfied that the annual earnings of an equivalent Australian employee to the nominee would exceed the TSMIT and it is reasonable to disregard r.2.72(10)(cc).
Based on the market salary rate information assessed in paragraphs 69 to 71 above, the Tribunal is satisfied that the Job Outlook average salary figure for a Chef is $54,600, which also exceeds the TSMIT. Although the Payscale salary range median figure for a Café Manager is approximately $43,000 which is below the TSMIT, but the upper end of the Payscale range is approximately $58,000. Moreover, the Seek advertised positions all have salary ranges starting above the TSMIT.
On balance, considering the above information cumulatively, the Tribunal is satisfied that the base rate of pay of an Australian employee in an equivalent role to the nominated position would be higher than the TSMIT.
Given this finding, the Tribunal finds that r.2.72(10)(cc) is met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the 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 written 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 r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
As noted above, from the evidence provided by the applicant to the Department and Tribunal, the Tribunal is satisfied that the applicant operates 2 Japanese restaurants based in inner city Melbourne, with a third dessert-themed one to open in mid-2018. The most recent organisational chart indicates that the applicant company presently employs approximately several Chefs (including the nominee) in addition to the director and owner, Mr Pai and various wait staff and other kitchen staff (such as the nominee’s assistant). It was strongly submitted by Mr Pai and his agent that the new dessert venue would be highly reliant on the nominee’s skills as a highly qualified and experienced Japanese dessert Chef. While there is necessarily an element of speculation about the likely performance of the proposed dessert venue in the Melbourne CBD, the Tribunal was satisfied from the detailed evidence of Mr Pai and the nominee at hearing that this business venture has been planned in detail and would appear to have reasonable prospects of success.
The Tribunal further accepts its success will be largely dependent on the applicant retaining the services of the nominee, whose speciality is the creating of Japanese desserts, both traditional and new. However, this raises an issue for the Tribunal; namely, whether the nominated role is more appropriately classified as a Pastry Cook or a Chef, given its almost sole focus on desserts.
The Tribunal has had regard to the ANZSCO occupational description for a Chef, as set out below:
UNIT GROUP 3513 CHEFS
CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.
Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group. Cooks are included in Unit Group 3514 Cooks. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
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:
NZ Register 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:
oplanning menus, estimating food and labour costs, and ordering food supplies
omonitoring quality of dishes at all stages of preparation and presentation
odiscussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
odemonstrating techniques and advising on cooking procedures
opreparing and cooking food
oexplaining and enforcing hygiene regulations
omay select and train staff
omay freeze and preserve foods

Occupation:
351311 Chef

351311 CHEF

Plans and organises the preparation and cooking of food in a dining or catering establishment.
Skill Level: 2
Specialisations:
Chef de Partie
Commis Chef
Demi Chef
Second Chef
Sous Chef

In contrast, the ANZSCO description for a Pastry Cook is as follows:
UNIT GROUP 3511 BAKERS AND PASTRYCOOKS

BAKERS AND PASTRYCOOKS prepare and bake bread loaves and rolls, buns, cakes, biscuits and pastry goods.
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 Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)

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:
ochecking the cleanliness of equipment and operation of premises before production runs to ensure compliance with occupational health and safety regulations
ochecking the quality of raw materials and weighing ingredients
okneading, maturing, cutting, moulding, mixing and shaping dough and pastry goods
opreparing pastry fillings
omonitoring oven temperatures and product appearance to determine baking times
ocoordinating the forming, loading, baking, unloading, de-panning and cooling of batches of bread, rolls and pastry products
oglazing buns and pastries, and decorating cakes with cream and icing
ooperating machines which roll and mould dough and cut biscuits
oemptying, cleaning and greasing baking trays, tins and other cooking equipment
Occupations:
351111 Baker
351112 Pastrycook

351111 BAKER

Prepares and bakes bread loaves and rolls.
Skill Level: 3
Specialisation:
Doughmaker

351112 PASTRYCOOK

Prepares and bakes buns, cakes, biscuits and pastry goods.
Skill Level: 3
Specialisation:
Cake Decorator
The original position description for the nominee provided to the Department in June 2016 lists the following responsibilities:
Responsibilities
Manage the kitchen on a day to day basis, design menu and ensure staff are trained to maintain quality and deliver food per the menu
Main duties
·Design, prepare and cook dishes
·Ensure quality of dishes prepared before serving
·Arrange for food purchase and proper food storage
·Plan and review menu in according to budget across 3 outlets
·Supervise and train cooks and kitchen hands, including demonstrate cooking techniques to them for the 3 outlets
·Ensure kitchen is clean and functional
·Discuss with management about food preparation issues and customer feedback
·Manage commercial kitchen in an efficient manner and attend to issue of staff, OH & S, training, hygiene etc.
In relation to the genuineness of the position, the June 2016 submission to the Department indicates that:
The applicant was one of the first Japanese restaurants to bring the Sake and Izakaya culture into the mainstream dining experience. After 8 years of operation, there are copies of the concept and competitions everywhere.
The Japanese restaurants have been known by its unique food offering and attention to details. However, currently there are so many Japanese restaurants opened and operated by non Japanese and do not have those unique qualities from a genuine Japanese restaurant (it is well discussed in the media).
The company is also expanding into Southland (under trading name B & B Southland, registration name enclosed) and CBD location to be opened under trading name Torasan, bond deposit enclosed).
In order to maintain its competitive advantage and market, it needs an experienced Japanese chef to be able to create menu, deep understanding of Japanese cuisine and deliver the food to the 3 sites.
[The nominee] has long term commercial cookery experience in Japan and overseas. He has deeply [sic] knowledge of Japanese cuisine and ingredients, in particular specialised in Japanese fusion sweet and dessert and pastry.
Also, he can create menu and operation line on according with the menu. He can also manage the human resource for kitchen staff.
Takenoko currently have 2 full time staff, but they are not Japanese and not trained from a Japanese cuisine background/culture, so that their knowledge and skill are not reaching the required level as the chef of the company.
…
At the hearing, both Mr Pai and the nominee expressed the view that the nominee carried out, and the nominated position required, high level skills consistent with the ANZSCO occupational description for a Chef. They further argued that these were at a higher level of skill and responsibility than a Pastry Cook, as that occupation is described in ANZSCO. In particular, the nominee made the point that a Chef is expected to create new dishes, as well as supervise staff and pass on skills to them and manage a commercial kitchen. In contrast, he indicated that a Pastry Cook generally worked with existing recipes and did not have the same degree of autonomy or creativity of a Chef. Although he acknowledged that there was some degree of overlap between the 2 occupations, he nevertheless maintained that he was more appropriately designated a Chef, for the reasons set out above. While the nominee stated that he could perform the tasks of a Pastry Cook due to his training and past work experience, this was a more limited subset of skills than those he presently exercised in working for the applicant’s businesses. He indicated that the tasks of a Pastry Cook were more usually carried out by his assistant.
Having considered the available evidence carefully, the Tribunal is satisfied that the tasks of the nominated position largely correspond to the occupational description for a Chef as set out in ANZSCO, and that this is the more appropriate designation for the nominated position than Pastry Cook. In reaching this conclusion, the Tribunal acknowledges that a Dessert Chef performs the tasks of a Chef mainly in relation to one aspect of a venue’s menu only, not the total menu, but it accepts that the dessert menu is a specialised one within the context of the applicant’s business(es), particularly the one which will focus on this aspect of dining alone. This is in contrast to the existing Chefs, who prepare the rest of the meals offered but not the desserts.
Although a relatively small company, the year to date profit and loss statements for the 2016/17 financial year provided to the Tribunal indicates that the business has had a monthly turnover of between approximately $116,000 and $135,000 from July 2016 to December 2017 (Maedaya) and between approximately $65,000 and $135,000 (Torasan). There was also income from B & B prior to its closure in mid-2017. The BAS for the same period reflect a combined total sales of between approximately $770,000 and $940,000 per month for all venues. This is supportive of Mr Pai’s evidence that businesses are increasing again after the downturn caused by the closure of B & B, the start up costs of Torasan and the refurbishment of Maedaya in the last couple of years.
Accordingly, while the applicant company is relatively small in terms of the number of employees, the Tribunal is satisfied that it has a genuine need for the nominated position, and that the nominated position will genuinely carry out the majority of tasks set out in ANZSCO for a Chef.
The Tribunal does note, however, with some concern, the evidence of Mr Pai and the nominee at hearing that, despite the proposed salary of $96,400 for the nominee (said to reflect his value to the business), the documentary evidence indicates that the nominee is presently being paid considerably less than this. When this issue was raised with Mr Pai and his agent, they indicated that the nominee would be paid the higher amount upon grant of his subclass 457 visa but was being paid a lower amount until his status was resolved. In the Tribunal’s view, this undermines to some degree the claimed importance of the nominee to the applicant’s existing and (in particular) its proposed dessert venue business. However, it accepts that this is a commercial decision for the applicant. Nevertheless, given these concerns, the Tribunal recommends that the issue of the nominee’s salary is monitored should he be granted a subclass 457 visa associated with this nomination.
For these reasons, the Tribunal is satisfied that the requirements of r.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 a written instrument.
Although no employment contract for the nominee was provided to the Department, or to the Tribunal prior to the hearing, a contract between the applicant and nominee dated 16 March 2018 was provided following the hearing. It is stated to come into effect upon grant of a subclass 457 visa to the nominee and provides for a salary of $96,400 plus superannuation. Accordingly, the Tribunal finds that the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The Tribunal is satisfied that the nominated occupation of Chef is a Skill Level 2 occupation and is thus exempt from labour market testing under IMMI 13/137.
Conclusion
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.
Alison Mercer
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)a standard business sponsor; or
(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.

[2018] AATA 1888

29 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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