The Trustee for Fresh Cuisine Trust (Migration)

The Trustee for Fresh Cuisine Trust (Migration) [2023] AATA 2362 (23 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for Fresh Cuisine Trust
REPRESENTATIVE:  Miss Margaret Mary Dizon (MARN: 0639396)
CASE NUMBER:  1926373
HOME AFFAIRS REFERENCE(S):          BCC2019/3089369
MEMBER:Alison Mercer
DATE:23 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 23 June 2023 at 4:44pm

CATCHWORDS
MIGRATION–nomination – Temporary Residence Transition stream – Café or Restaurant Manager – reasonable to disregard this adverse information – historical breaches – applicant genuinely took action to rectify these matters – applicant has a satisfactory record of compliance with the laws – applicant was the standard business sponsor –– genuine need to employ a paid employee to work in the position under the nominator’s direct control –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.79, 2.84, 5.19

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 September 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 18 June 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant, Fresh Cuisine (NT) Pty Ltd as the Trustee for Fresh Cuisine Trust, has applied for approval of a nomination of the position of Café or Restaurant Manager, seeking to satisfy the criteria in the Temporary Residence Transition stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5)(k), and therefore rr.5.19(5) and (4)(e), of the Regulations. The delegate was not satisfied that the applicant had a genuine need for the nominated position within its operations. The delegate reviewed the work samples provided and acknowledged that the nominee did deal with suppliers for the restaurant operated by the applicant but was not satisfied that the nominee would or did carry out the full range of duties for a Café or Restaurant Manager as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary, given the scope and size of the applicant’s business. The delegate acknowledged that the nominee held a subclass 457 visa based on being approved for the nominated position but noted that the Department’s records indicated that the applicant had already sponsored another subclass 457 visa for the position of Café or Restaurant Manager. The delegate found that the applicant did not satisfy the criteria for approval of its nomination in the Temporary Residence Transition stream.
The Tribunal received a review application on 19 September 2019. It was lodged on behalf of the applicant by its director, Mr Nelson Acuna, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Acuna appointed a registered migration agent, Ms Margaret Dizon, as the applicant’s representative and authorised recipient for correspondence.
On 19 October 2022, the Tribunal wrote to Mr Acuna via the agent to invite him, pursuant to s.359(2) to provide updated and current information demonstrating that the applicant met all of the applicable criteria in r.5.19 (not just the criterion that the delegate found was not met). Mr Acuna was requested to provide this information by 2 November 2022.
On 2 November 2022, the Tribunal received the following information from Mr Acuna and the agent:
·legal submissions;
·ASIC and ABN registration from the applicant;
·financial statements and company tax returns for the applicant 2020/2021 and 2021/2022;
·Business Activity Statements (BAS) for 24 month period for the applicant;
·instalment activity statements for 24 months for the applicant;
·Food Business registration certificate issued to the applicant by the Northern Territory (NT) government;
·organisational chart and staff list;
·position description for nominated position and ANZSCO occupational description for Café or Restaurant Manager;
·work samples evidencing nominee’s role, and letters from suppliers to the applicant’s restaurant;
·undated letter from Mr Acuna as to the genuine need for the nominee and the nominated position;
·nominee’s curriculum vitae, his qualifications and previous visas held;
·contracts of employment between the applicant and nominee dated 31 March 2014, 14 June 2019 and 30 October 2022;
·information pertaining to previous sanction imposed on the applicant by the Department on 31 January 2017;
·evidence of the applicant’s donations to relevant industry training fund;
·payslips for the nominee;
·payroll activity statements for the applicant for 2014/15 and 2016/17;
·PAYG summaries and tax assessment notices for the nominee for the financial years 2015/16 to 2021/22.
The agent’s legal submissions were as follows:
…
We are writing regarding the application for review made by The Trustee for Fresh Cuisine Trust (“the applicant”) in respect of a decision to refuse their application for approval of a nominated position under r.5.19 of the Migration Regulations 1994 (the Regulations).
In order for the nomination of a position to be approved, we understand that the Tribunal must be
satisfied that all of the relevant criteria in r.5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Temporary Residence Transition nomination stream, the relevant criteria are in rr.5.19(4) and (5) of the Regulations.
As the application for nomination was made under the Temporary Residence Transition nomination
stream, the relevant criteria contained in reg 5.19(4) and (5) of the Regulations requires to be met.
The supporting documents and information provided in this submission clearly demonstrate that the criteria have been met including as the following extract from the Migration Regulations 1994, stack
05/05/2019 – 20/06/2019:
Reg 5.19 Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and
Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1) A person (the nominator) (including a partnership or unincorporated association) may apply to the
Minister for approval of the nomination of a position in Australia.
The nominator operates a business trading as Fresh Cuisine located at Hibiscus Shoppingtown, 6/8
Leanyer Drive, NT 0812.
(2) The application must:
(a) be made in accordance with approved form 1395 (Internet); and
The nominator has made the application in accordance with approved form 1395 (internet)
(b) identify the position; and
The nominator has identified the position as Café/Restaurant Manager.
(c) identify a person (the identified person) in relation to the position; and
The nominator has identified the person, the nominee in relation to the position.
(d) identify an occupation in relation to the position; and
The nominator has identified the occupation as per ANZSCO 141111 Café or Restaurant Manager
(e) identify the subclass and stream to which the nomination relates, which must be one of the
following:
(i) a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence
Transition stream;
(ii) a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence
Transition stream;
(iii) a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv) Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v) a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream;
and
(f) be accompanied by the fee mentioned in regulation 5.37; and
The nominator has identified the stream as a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream. The nominee has been working in the position since his subclass 457 visa was approved on 19/06/2015. Consequently, after three years of working in the same position as Café or Restaurant Manager, the nominator nominates the identified person for the RSMS TRT stream of the subclass 187.
(fa) be accompanied by any nomination training contribution charge the nominator is liable to pay in relation
to the nomination; and
The nominator did not have to pay any charges in relation to the specific stream applied for (i.e., NIL application charge).
(fb) identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges
Regulations 2018) for the nomination; and
The nominator has identified its annual turnover for the nomination
(g) include a written certification by the nominator stating whether or not the
nominator has engaged in conduct, in relation to the nomination, that constitutes a
contravention of subsection 245AR(1) of the Act.
The nominator has stated that the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
Approval of nomination
(3) The Minister must, in writing:
(a) approve the nomination if the Minister is satisfied that the requirements set out in
subregulation (4) are met; or
(b) otherwise—refuse to approve the nomination.
We provide in this submission, comprehensive evidence to demonstrate that subregulation (4) are met.
Requirements for approval—general
(4) The requirements to be met for the nomination to be approved are as follows:
(a) the application is made in accordance with subregulation (2);
(b) either:
(i) there is no adverse information known to Immigration about the nominator or
a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration
about the nominator or a person associated with the nominator;
Significant time has since elapsed since the sponsor was banned from further sponsorship of overseas skilled worker as a Standard Business Sponsor. A copy of the decision and confirmation that the ban has lifted is provided in this submission. Since the ban was lifted, the applicant had applied for a 187 RSMS TRT nomination for another subclass 457 holder and was approved, for her subclass 187 TRT visa.
(c) if it is mandatory, in the State or Territory in which the position is located, for a
person to:
(i) hold a licence of a particular kind; or
(ii) hold registration of a particular kind; or
(iii) be a member (or a member of a particular kind) of a particular professional
body;
to perform tasks of the kind to be performed in the occupation, the identified person is,
or is eligible to become, the holder of the licence, the holder of the registration, or a
member of the body, at the time of application;
There is no registration or licensing required to perform the tasks of the kind to be performed in the
nominated occupation.
(d) the nominator has a satisfactory record of compliance with the laws of the Commonwealth,
and of each State or Territory in which the nominator operates a business and employs employees
in the business, relating to employment;
The nominator now has a satisfactory record of compliance with the laws of the Commonwealth, and in the Northern Territory which the nominator operates his business and employs employees in the business, relating to employment.
(da) any debt due by the nominator as mentioned in section 140ZO of the Act (recovery
of nomination training contribution charge and late payment penalty) has been paid in
full;
The nomination training contribution charge has been paid in full.
(e) if the nomination relates to a visa in a Temporary Residence Transition stream—the
requirements set out in subregulation (5) are met;
We provide evidence that the criteria in subregulation (5) is met.
(f) if the nomination relates to a visa in a Direct Entry stream—the requirements set out
in subregulation (9) are met;
Not applicable.
(g) if the nomination relates to a visa in a Labour Agreement stream—the requirements
set out in subregulation (14) are met.
Not applicable.
Temporary Residence Transition stream—additional requirements for approval
(5) If the nomination relates to a visa in a Temporary Residence Transition stream, the
following requirements must also be met:
(a) at the time the application is made, the identified person holds:
(i) a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the
person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force
before 18 March 2018; or
At the time the application was made, being on the 18/06/2019, the identified person held a subclass 457 visa (Temporary Work (Skilled)) granted on the basis that the person satisfied the criterion in subclass 457.223(4) of Schedule 2 as in force before 18 March 2018.
(ii) a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream; or
(iii) for a person specified in a legislative instrument made by the Minister for the
purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in
the Short-term stream; or
(iv) if the last substantive visa held by the identified person was a visa mentioned
in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the
person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v) if the last substantive visa held by the identified person was a visa mentioned
in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument
made under subparagraph (iii), a bridging visa granted on the basis that the
person is an applicant for a visa mentioned in subparagraph (iii); or
(vi) if the last substantive visa held by the identified person was a visa mentioned
in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the
person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or
a Subclass 187 (Regional Sponsored Migration Scheme) visa;
Clauses (ii) – (vi) are not applicable.
(b) the occupation:
(i) is listed in ANZSCO; and
(ii) has the same 4-digit ANZSCO occupation unit group code as the occupation in
relation to which the identified person’s most recently held Subclass 457
(Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage)
visa was granted;
The occupation is listed in ANZSCO as 141111 and is exactly the same occupation as what was approved for the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa that was granted. The identified person has held the position for nearly four years at the time of nomination for the Subclass 187 RSMS TRT stream.
(c) unless a legislative instrument made under subregulation (8) exempts the identified
person from the operation of this paragraph—the occupation must:
(i) be an occupation specified in an instrument made under subregulation (8) and
in force at the time the application is made; and
(ii) apply to the identified person in accordance with an instrument made under
that subregulation;
The occupation specified in an instrument made under subregulation (8) was in force at the time the
application was made and applies to the identified person in accordance with an instrument made
under that subregulation.
(d) either:
(i) there is no information known to Immigration that indicates that the identified
person is not genuinely performing the tasks of the occupation as specified
in ANZSCO; or
(ii) it is reasonable to disregard any such information;
The identified person is genuinely performing the tasks of the occupation as specified in ANZSCO. As
background information, The shop is open 7 days a week from 6:30 am until 9:00 pm (trading hours).
The nominee comes to work six days a week as the Café or Restaurant Manager for a minimum of 38
hours per week. He commences work at 6:00 am in time for the shop to open at 6:30 am. The Assistant Director also acts as the Acting Manager in the nominee’s absence from work.
Previously, the applicant (Company Director) himself was the overall Café/Restaurant Manager for Fresh Cuisine. However, due to the demands of ill-health and hospitalisations over the years, the applicant had down-sized his businesses from running six separate food and beverage cafes in five different suburbs, to now only owning one. The purpose behind sponsoring the nominee in 2015 and whose subclass 457 visa was approved on 19/06/2015, was to enable the applicant to improve his health condition, spend more time with his family and reduce the harm of physical, emotional and psychological burn out experienced from running six shops at the one time. The applicant’s doctor has recommended for the applicant to spend as little as time at the shop. Consequently, the applicant has reverted to assisting in the accounts management instead and planning for an overseas business venture.
There is genuine need for the nominee to continue filling the position on an ongoing basis. The nominee has been in his role since his subclass 457 visa was approved on 19/06/2015, more than seven years ago. His work contract clearly stipulates in the employment agreement that there will be work for a further two years from the date of the visa grant. In fact, there will be work for all of the future existence and operation of the business, not just for the next two years.
The nominee has successfully grown in his role, dealing with customers, staff and product and service suppliers effectively, without interference or supervision from the applicant. The identified person successfully maintains the quality, high-quality of service and cleanliness of the shop. The business outcomes will be impossible to manage and maintain without the nominee in the role.
(e) during the period of 4 years immediately before the application is made, the
identified person held one or more of the following for a total period of at least 3 years:
(i) a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the
person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force
before 18 March 2018;
The identified person has held, for a total period of at least 3 years, during the period of 4 years
immediately before the application was made, a Subclass 457 Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018.
(ii) a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream;
(iii) for a person specified in a legislative instrument made under subparagraph
(a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream;
(f) unless paragraph (g) applies—during the period of 4 years immediately before the
application is made, the identified person was employed in the position in relation to
which the visa, or visas, mentioned in paragraph (e) were granted:
(i) for a total period of at least 3 years (not including any periods of unpaid leave);
and
(ii) on a full-time basis, with the employment being undertaken in Australia;
(g) if the visa, or visas, mentioned in paragraph (e) were granted in relation to an
occupation specified in an instrument made under subregulation 2.72(13)—during the
period of 4 years immediately before the application is made, the identified person was
employed in the occupation for a total period of at least 3 years (not including any
periods of unpaid leave);
(h) the nominator:
(i) was the standard business sponsor who last identified the identified person in
a nomination approved under section 140GB of the Act; and
(ii) is actively and lawfully operating a business in Australia;
The nominator was the standard business sponsor who last identified the identified person in a
nomination approved under section 140GB of the Act and is actively and lawfully operating a business in Australia as evidenced in this submission.
(j) the application identifies a need for the identified person to be employed in the
position, under the direct control of the nominator;
The nominator has identified needs for the identified person to be employed in the position, under the direct control of the nominator.
(k) there is a genuine need for the identified person to be employed in the position,
under the direct control of the nominator;
The nominator has demonstrated that there continues to be a genuine, on-going need for the identified person to be employed in the position, under the direct control of the nominator. The identified person has been in the occupation for the past seven years and there is ongoing need for him to continue filling the occupation for the business to operate.
(l) the identified person will be employed on a full-time basis in the position for at least
2 years;
The identified person has been employed on a full-time basis in the position for the past seven years and there will be full-time employment for a further two years minimum, from the date of the visa grant.
(m) the terms and conditions of the identified person’s employment will not include an
express exclusion of the possibility of extending the period of employment;
The terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
(n) the nominator’s business has the capacity to employ the identified person for at
least 2 years and to pay the person at least the annual market salary rate for the
occupation each year;
The nominator’s business continues to have the capacity to employ the person from seven years ago
and for at least 2 years. It also has the capacity to paying the person at least the annual market salary rate of the occupation each year.
(o) the requirements set out in subregulation 2.72(15) are met, applying
subregulations 2.72(15) and (16) as if:
(i) paragraph 2.72(15)(a) did not apply; and
(ii) references to the nominee were references to the identified person; and
(iii) references to the person were references to the nominator;
(p) either:
(i) there is no information known to Immigration that indicates that the
employment conditions (other than in relation to earnings) that will apply to the
identified person are less favourable than those that apply, or would apply, to an
Australian citizen or an Australian permanent resident performing equivalent
work at the same location; or
(ii) it is reasonable to disregard any such information;
The nominator provides employment conditions (that will apply to the identified person) that are no less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location.
(q) the nominator has provided the information required by the Minister for the
purposes of paragraph (k) to (n).
We provide supporting and verifiable evidence for your consideration to demonstrate that the criteria are clearly met by the nominator in more than 300 pages of a submission, bookmarked for ease of reference.
…

On 15 May 2023, the Tribunal wrote to Mr Acuna via the agent to invite him, on behalf of the applicant, to attend a Tribunal hearing via videoconference on 14 June 2023. The Tribunal requested that they provide any additional supporting material to the Tribunal by 7 June 2023. The Tribunal further noted that it would assist the Tribunal if the nominee, Mr Ramphel Acuna, was available to give evidence at this hearing as a witness. The Tribunal stated that it also intended to hold a separate hearing for the nominee for his visa application directly before this hearing, and would write to him separately about this.
On 23 May 2023, Mr Acuna indicated that he would attend the hearing on 14 June 2023, and he provided ATO income statements for the applicant for the 2022/2023 financial year to date.
On 31 May 2023, Mr Acuna provided the following additional documents:
·applicant’s financial statements for 2021/2022;
·letter dated 25 May 2023 from Nicole Manison, MLA for Wanguri, the electorate in which the applicant’s business is located, in support of the grant of permanent residence to the nominee;
·letter dated 23 May 2023 from Januario John R Rivas, AM, Consul General, Philippine Consulate General, Darwin, in support of the grant of permanent residence to the nominee;
·6 letters, variously dated in May 2023, from customers of the applicant’s business in support of the grant of permanent residence to the nominee.
On behalf of the applicant, Mr Nelson Acuna appeared before the Tribunal on 14 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Ramphel Acuna, and oral submissions from the applicant’s agent.
The Tribunal hearing initially took place by videoconference but due to technical difficulties with the internet connection, and with the agreement of the parties, it proceeded by conference telephone call.
The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Mr Nelson Acuna clarified to the Tribunal that the nominee, Mr Ramphel Acuna, is his nephew. The other Acuna family member listed in the current organisational chart is Evelyn Acuna, who is Mr Nelson Acuna’s wife.
Mr Nelson Acuna gave the history of his migration to Australia and his business history here, telling the Tribunal that he worked on luxury liners and in hospitality in Saudi Arabia after leaving the Philippines. On a cruise, he met an Australian couple who were impressed with him and sponsored him to manage one of their cafes in Australia. He was granted a subclass 457 visa for 4 years and said that he managed their business as if it was his own. Mr Acuna said that he hoped in time to be able to open his own business in Australia. He told the Tribunal that this was his goal so that he would be able to support his family and community.
By 2008, he had been granted permanent residence through his Australian employment. He also bought a house. In 2009, he opened his own business. His plan was to expand to at least 12 businesses in due course, and he was able to expand to 10 businesses. However, in 2014-2015, he began suffering from a range of health problems and his doctors recommended that he decrease his work. Eventually, he was diagnosed with colon cancer, for which he has ongoing chemotherapy every 6 weeks. Mr Acuna said that by 2019, he had reduced his number of businesses to 6, and now he only had involvement in 1: the Fresh Cuisine café in the Hibiscus shopping centre in Darwin. This was the café for which the nominee was the Café Manager. Mr Acuna told the Tribunal that when he had more café and take away outlets, his business had sponsored other Café or Restaurant Managers from the Philippines, but now he had only the 1 café for which his nephew, the nominee, had been the Café Manager for several years. Mr Acuna said that he sponsored his nephew Ramphel Acuna to come to study in Australia and that Ramphel worked part time in the business as permitted by his student visa conditions, initially as a waiter. Mr Acuna told the Tribunal that he identified that Ramphel had potential to run the business, and later promoted him to Café Manager. He said that he and the business now relied on Ramphel to manage it, and that he had every confidence in Ramphel to do so, as he had successfully done so to date, even through the COVID19 period when its operations were restricted.
Mr Acuna told the Tribunal that he had built a very loyal regular clientele for Fresh Cuisine, and that he still visited the café to see them, and they did not know of his ill health. He noted that Ramphel had been instrumental to keeping these customers loyal to the business as well. Mr Acuna said that this loyalty from locals had enabled the business to survive through COVID, even though tourist numbers dwindled during this time. Mr Acuna said that he was also grateful to the Northern Territory government for its assistance, and that his priority as the owner of the business was to keep his overseas student employees employed in the business.
Mr Acuna described a combination of factors – principally, his increasing ill health, the death of his father in the Philippines, and some difficulties with the sale of one of his businesses – leading to him ceasing to work in Fresh Cuisine on a regular or day to day basis from approximately 2017 onwards. He confirmed that his wife, Evelyn, still works as a bookkeeper in the business but said that he anticipated that she would be winding back her involvement in the near future, partly due to his ill health. Mr Acuna said that it was vital that Ramphel continued to manage the café.
Mr Acuna confirmed that Ramphel carries out the full range of duties of a Café or Restaurant Manager as set out in ANZSCO.
The Tribunal then took evidence from Mr Ramphel Acuna about his duties as Café Manager at Fresh Cuisine. He indicated that they included all of the duties listed in ANZSCO, including arranging for functions and special catering jobs, as well as the day to day running of the restaurant. He said that he started at 6:00am to go through the checklist for back and front of house in preparation for opening at 6.30am. He confirmed that he is responsible for staff selection and training, and consults with the Chefs about dishes on the menu, based in part on customer feedback and in part on budgetary factors. He further confirmed that he deals with the café’s suppliers and is responsible for managing its finances and stock levels. Finally, Mr Ramphel Acuna confirmed that he has a close relationship with the café’s regular customers, and is vigilant to ensure that they receive the dishes they like and exemplary customer service.
In relation to the nominee’s salary, and how it was determined, Mr Nelson Acuna said that it was $66,611 per year plus superannuation, and had been determined by looking at the relevant Award and also market salary rates. The applicant’s agent undertook to provide submissions addressing the annual market salary rate (AMSR) for a Café or Restaurant Manager, and to confirm the nominee’s current salary, following the hearing. She also noted that the nominee’s most recent ATO tax assessment notice listed his taxable income as approximately $65,000.
The Tribunal discussed with Mr Nelson Acuna and the agent the requirement that there not be any adverse information known to the Department about the business (unless it was reasonable to disregard it), noting that the business had been found by the Department to have breached its sponsorship obligations to several employees and to have received a sanction in 2017 preventing it from sponsoring any other visa holders for a 2 year period. The Tribunal further noted the agent’s submissions that the sanction period had now ceased, and that the Department had approved a subsequent nomination by the business for a permanent residence application by another employee, who later left the business. The agent submitted that it was therefore reasonable to disregard the adverse information in this case.
Mr Nelson Acuna said that the Department investigation and sanction was a wake up call for him, and he changed the way he ran the business to ensure that the business met all of its sponsorship obligations going forwards. He said that the problems identified by the Department in 2017 had been rectified, and it was important to him that this was the case, for the future success of the business.
Following the hearing, the Tribunal received the following additional information on 22 June 2023:
·updated employment contract between the applicant and the nominee, dated 20 June 2023, with salary of $65,000 plus superannuation;
·submissions on the Annual Market Salary Rate (AMSR); and
·supporting documents for AMSR submissions, including salary surveys and job advertisements.
The ASMR submissions were as follows:
…
As evidence of annual market salary rate (AMSR) for the position of Restaurant Manager, we refer to the remuneration surveys obtained from Jora, Glassdoor, and Indeed. Based on the remuneration surveys
·     from Jora, the average annual salary for a Restaurant Manager in Darwin ranges from $ 65,000 to $ 80,000
·     from Glassdoor, the average salary for a Restaurant Manager position in Darwin is $ 67,500 per year, where salaries range from $55,000 to $ 73,000
·     from Indeed, the average base salary for a Restaurant Manager is $ 65,053 per year in the Northern Territory and is the same as the national average. This is based on 60 salaries reported and up to date as at 14 June 2023.
We also refer to the similar job advertisements in the past six months in Australia. The salary offered by other employers in the Northern Territory ranges from $ 57,000 to $ 80,000 per year. The higher salary are for positions that require night shifts.
We also checked the Australian Government’s Labour Market Insights website (previously Job Outlook) for information regarding earnings for the Restaurant Manager occupation. The median full- time earnings are $ 1,268 per week for an average of 48 hours per week work. The median hourly earnings are $ 33 per hour. For a 38 hour work week, the annual salary would be $ 65,208 based on this information.
We determined based on the gathered information that the annual salary that we would pay an equivalent Australian worker is $ 65,000. We confirm that this is what we would normally pay an equivalent Australian worker holding the same position and with the same qualification and work experience as the nominee. The salary, terms, and conditions of employment offered to the nominee is equivalent and not less favourable than what would be provided to an Australian citizen or
permanent resident performing equivalent work at the same location. Hence, the nominee will be paid at the current market salary of $ 65,000.
…
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.
Having reviewed the Department’s file, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
As acknowledged by the applicant, it was the subject of monitoring by the Department in 2016 and a sanction decision by the Department made on 31 January 2017. That decision indicates that due to information provided by 2 employees, various sponsorship breaches by the applicant were identified and it was subject to a 2 year bar on sponsoring any further employees. The relevant parts of the Department sanction decision are set out below:
…
Background
The Trustee for Fresh Cuisine Trust was approved as a standard business sponsor on 27
March 2014 for three years. It was its second sponsorship agreement. The first agreement
was approved on 29 July 2010 for three years.
The department commenced monitoring of the sponsor on 19 August 2016. The sponsor has
not been monitored before although the sponsor had received a 457 Education Visit on 07
September 2011 and a 457 nomination pre-verification site visit on 16 April 2013.
The monitoring period was 01 January 2015 to 30 June 2016.
Four visa holders were named in the monitoring document. At the time, the sponsor had
three 457 visa holders in Café Restaurant Manager (ANZSCO 141111) positions. One visa
holder (Guamelee ENRIQUEZ) had ceased employment on 12 July 2015 however this visa
holder was included in the monitoring. Guamelee ENRIQUEZ was also nominated as a Café
Restaurant Manager (ANZSCO 141111).
On 26 August 2016, the department issued a Regulation 2.83 Notice requesting Records and Information (Reg 2.83 Notice) to the sponsor during an unannounced site visit.
On 13 September 2016, the department received a response to the Reg 2.83 Notice from the sponsor.
On 16 September 2016, the department received an email from the sponsor with additional
records and information as part of the response to the Reg 2.83 Notice.
On 03 October 2016, the department emailed the sponsor requesting outstanding documents as listed in the Reg 2.83 Notice.
On 06 October 2016, the department received an email with additional documents as listed
in the Reg 2.83 Notice.
On 29 November 2016, the department sent a NOITTA via email to the sponsor for potential
breaches as follows:
• Regulation 2.79 requires a sponsor to ensure it provides terms and conditions of
employment that are no less favourable than those approved at nomination (the
Guaranteed Annual Earnings (GAE).
o Ma Milagros RABUYO was paid $988.46 gross weekly which equates to
$51,4000/annum. Third party verifiable records (sponsor’s bank statements) showed that the visa holder was not paid for three weekly pay periods. The sponsor did not
provide any records to support or show reasons for non-payments.
o Loida Anoneuvo ACUNA was paid $961.54 gross weekly which equates to
$50,000/annum. Third party verifiable records (sponsor’s bank statements) showed
that the visa holder was not paid for six weekly pay periods and also was underpaid
for one weekly pay period. The sponsor did not provide any records to support or
show reasons for non-payments or underpayment.
• Regulation 2.84 requires a sponsor to ensure it provides details to the department when
certain events occur, eg cessation of employment.
o Guamelee ENRIQUEZ ceased employment with Fresh Cuisine on 12 July 2015. The
department had no records that indicated that the sponsor had notified the
department as per sponsorship obligations.
• Regulation 2.86 requires a sponsor to ensure the visa holders does not work in
occupation other than the position which nomination was approved. The department had
reasonable belief that the visa holders worked outside their nominated positions:
o Guamalee ENRIQUEZ was approved to work as a Café Restaurant Manager at Fresh
Cuisine, shop 6 at Hibiscus Shopping Centre, however she was assigned by the
sponsor to work at the sponsor’s takeaway outlet located at the Casuarina Shopping
Centre. The visa holder undertook duties not consistent with a Café Restaurant
Manager such as washing dishes, mopping floors, cleaning the store and making
sandwiches.
o Ma Milagros RABUYO was approved to work as a Café Restaurant Manager at Fresh
Cuisine, shop 6 at Hibiscus Shopping Centre, however she was assigned by the
sponsor to work at the sponsor’s takeaway outlet located at the Casuarina Shopping
Centre. The visa holder undertook duties not consistent with a Café Restaurant
Manager such as washing dishes, mopping floors, cleaning the store and making
sandwiches.
o Loida Anoeuvo ACUNA was approved to work as a Café Restaurant Manager at
Fresh Cuisine, shop 6 at Hibiscus Shopping Centre. At an unannounced site visit on
26 August 2016, departmental officers observed the visa holder working at the
sponsor’s alternate business located next door at Nelson’s Seafood. The visa holder
was undertaking duties not consistent with a Café Restaurant Manager such as
washing dishes.
• Regulation 2.87B requires a sponsor to contribute to the training of Australian workers in
each year they engage a 457 visa holder.
o The sponsor provided training records for the financial year of 2013/2014. They were
irrelevant to the monitoring audit period (01 January 2015 to 30 June 2016). The
sponsor did not provide any other records to demonstrate that it had contributed
towards the training of Australian workers since that period.
• Regulation 2.90 - Provision of false or misleading information. The department had
reasonable belief that the sponsor had created the rosters and timesheets for the
monitoring audit. The rosters and timesheets were not consistent with visa holders’ interview statements.
…
Assessment and findings
Regulation 2.79 - Obligation to ensure equivalent terms and conditions of employment
In relation to this regulation specifically sub-regulation 2.79(3), the sponsor stated in
response to the NOITTA that:
• Ma Milagros RABUYO – the visa holder was paid from an alternative bank account. The
sponsor provided copies of visa holder’s bank statements to confirm the weekly wage
payments were paid. The sponsor paid the shortfall of $49.61 nett to the visa holder.
• Loida Anoneuvo ACUNA – there were no payment of wages due to the visa holder taking
unpaid leave for ill health. The sponsor provided statutory declarations and payslips for
the weekly wage periods.
I have noted the sponsor’s response to the NOITTA and the other evidence gathered during
monitoring and consider that the sponsor provided records and information to support the
claims. The sponsor also made restitution with a back pay to visa holder Ma Milogros
RABUYO. I am satisfied that the sponsor has met this obligation.
Regulation 2.84 - Obligation to provide information to Immigration when certain events occur
In relation to this regulation, the sponsor stated in response to the NOITTA that he had
notified his Migration Agent, Mr Ian Stringer of the cessation of Guamelee ENRIQUEZ’s
employment effective from 12 July 2015; he further stated that he was unsure whether the
department was notified by the migration agent of the cessation.
I have noted the sponsor’s response to the NOITTA and the other evidence gathered during
monitoring and consider that neither the sponsor nor migration agent provided evidence of
notification to the department and the department has no record of such notification. I have
concluded that the sponsor has breached Regulation 2.84.
Regulation 2.86 - Obligation to ensure primary sponsored person works or
participates in nominated occupation, program or activity
In relation to this regulation, the sponsor stated in response to the NOITTA as follows:
• Guamalee ENRIQUEZ – the sponsor admitted that the visa holder was assigned to his
alternate business ie take-away outlet at the Casuarina Shopping Centre. The sponsor
did not dispute the duties detailed in the NOITTA nor the suggestion that the duties were
not consistent with the Café Restaurant Manager role. In the sponsor’s response to the
NOITTA the sponsor referred to the business as a “takeaway outlet”. The visa holder was undertaking work at a lesser skill than the nominated position level ie the visa holder
was carrying out the duties of a hospitality worker.
• Ma Milagros RABUYO - the sponsor admitted that the visa holder was assigned to his
alternate business ie take-away outlet at the Casuarina Shopping Centre. The sponsor
did not dispute the duties detailed in the NOITTA nor the suggestion that the duties were
not consistent with the Café Restaurant Manager role. In the sponsor’s response to the
NOITTA the sponsor referred to the business as a “takeaway outlet”. The visa holder
was undertaking work at a lesser skill than the nominated position level ie the visa holder
was carrying out the duties of a hospitality worker.
• Loida Anoeuvo ACUNA - the sponsor admitted that the visa holder was assigned to his
alternate business ie seafood shop known as Nelson’s Seafood. The sponsor did not
dispute the duties detailed in the NOITTA nor the suggestion that the duties were not
consistent with the Café Restaurant Manager role. The visa holder was undertaking work
at a lesser skill than the nominated position level ie the visa holder was carrying out the
duties of a hospitality worker.
I have noted the sponsor’s response to the NOITTA and the other evidence gathered during
monitoring and consider that three visa holders were not carrying out tasks that are equivalent to the ANZSCO occupation of a Café Restaurant Manager (141111):
…
The monitoring identified that the sponsor had four visa holders nominated as Café
Restaurant Managers during the monitoring audit period. During the monitoring period three
visa holders: Guamalee ENRIQUEZ, Ma Milagros RABUYO and Loida Anoeuvo ACUNA
carried out duties at a lesser skill level ie hospitality worker. The sponsor did not dispute the
duties detailed in the NOITTA nor the suggestion that the duties were not consistent with the Café Restaurant Manager (ANSZCO 141111) role.
Regulation 2.87B - Obligation to provide training
In relation to this regulation, the sponsor stated in response to the NOITTA that it has failed
to meet the training benchmark in the financial years 2014/2015 and 2015/2016. The
sponsor stated that it made a 2% of its payroll contribution to Charles Darwin University,
further stating that evidence of such payment would be provided to the department. A
request for this evidence was made to the sponsor (via its migration agent) on 19 January
2017, to date this has not been received.
I have noted the sponsor’s response to the NOITTA and the other evidence gathered during
monitoring and consider that the sponsor has failed to meet this obligation on two occasions
to meet its training benchmark 2% for each financial year: 2014/2015 and 2015/2016.
Regulation 2.90 - Provision of false or misleading information
In relation to this regulation, the sponsor stated in response to the NOITTA that when he was
unable to provide the rosters and timesheets as requested in the Reg 2.83 he resorted to
fabricating rosters and timesheets in order to satisfy the department’s request for information.
The rosters submitted did not support the information provided by the visa holders at
interview in relation to their work hours and days of work. The sponsor claimed that there
was no intention to mislead the department however the sponsor failed to declare that the
records were re-created when they were submitted to the department. This was identified
through administrative IT checks conducted by the department.
I have noted the sponsor’s response to the NOITTA and the other evidence gathered during
monitoring and consider that the sponsor intentionally attempted to mislead the department
into accepting the filtered information contained in the re-created rosters rather than the
information provided by each visa holders. The sponsor has breached this regulation with
the provision of false and misleading information to the department.
Given my assessment above, I am satisfied that the following circumstances exists or existed to bar the sponsor or cancel the approval of the sponsor:
• Regulation 2.89 - Failure to satisfy sponsorship obligation
• Regulation 2.90 - Provision of false or misleading information
In relation to Regulation 2.89, the identified failures to satisfy the sponsorship obligations are:
• Regulation 2.79 - Obligation to ensure equivalent terms and conditions of employment
• Regulation 2.84 - Obligation to provide information to Immigration when certain events
occur
• Regulation 2.86 - Obligation to ensure primary sponsored person works or participates in
nominated occupation, program or activity
• Regulation 2.87B - Obligation to provide training
Considerations
In deciding what action to take under section 140M of the Act, there are certain criteria that I
must take into account, depending on which circumstances exist or existed.
Regulation 2.89 - Failure to satisfy a sponsorship obligation
As I have determined that the sponsor has failed to satisfy one or more sponsorship
obligations, I must take into account the criteria outlined in Regulation 2.89(3) in determining
what action to take under s140M of the Act.
Regulation 2.89(3)(a): The sponsor’s past and present conduct in relation to Immigration
Comments
The sponsor’s conduct during the monitoring audit was cooperative. The sponsor responded
to both Reg 2.83 Notice and NOITTA. The sponsor was not timely with its responses to the
NOITTA with several requests for extensions. The sponsor has had previous dealings with
the department with a 457 Education Visit on 07 September 2011 and 457 Nomination preverification site visit on 16 April 2013.
Regulation 2.89(3)(b): The number of occasions on which the sponsor has failed to satisfy
the sponsorship obligation
Comments
• Regulation 2.86 - Obligation to ensure primary sponsored person works or
participates in nominated occupation, program or activity
The sponsor has failed to satisfy this obligation on three occasions. Three visa holders
carried out tasks outside their nominated occupation.
• Regulation 2.87B - Obligation to provide training
The sponsor has failed to satisfy this obligation on two occasions. The sponsor did not
demonstrate that it had contributed toward training funds for the financial year 2014/2015
and financial year 2015/2016.
• Regulation 2.84 - Obligation to provide information to Immigration when certain
events occur
The sponsor has failed to satisfy this obligation on one occasion. The sponsor did not
notify the department of certain events that may have arose, in this case, one visa holder
Guamelee ENRIQUEZ had ceased employment.
Regulation 2.89(3)(c): The nature and severity of the circumstances relating to the failure to
satisfy the sponsorship obligation, including the period of time over which the failure has
occurred
Comments
• Regulation 2.86 - Obligation to ensure primary sponsored person works or
participates in nominated occupation, program or activity
The sponsor has failed to satisfy this obligation to ensure three visa holders are not to
work outside their nominated occupation of Café Restaurant Manager (ANZSCO 141111)
positions.
The department considers that the sponsor deliberately disregarded the sponsorship
obligations by allocating lower skilled tasks to the visa holders in order to suit his
business operations. The sponsor’s action had intentionally diminished the effective
delivery of the 457 sponsorship program.
• Regulation 2.87B - Obligation to provide training
The sponsor has failed to contribute toward training funds for the financial years
2014/2015 and 2015/2016 for Australian workers within the hospitality and retail industry.
The department considers that the sponsor failed to engage Australian workers in order
to develop skills within the hospitality and retail industry.
• Regulation 2.84 - Obligation to provide information to Immigration when certain
events occur
The sponsor has failed to notify the department of certain events that has occurred
throughout the life of the sponsorship agreement. One visa holder Guamelee
ENRIQUEZ ceased employment on 12 July 2015. The failure to notify the department could have had impact on the visa holder’s immigration status.
Regulation 2.89(3)(d): The period of time over which the sponsor has been an approved
sponsor
Comments
The Trustee for Fresh Cuisine Trust was approved as a standard business sponsor on 27
March 2014 for three years. It was its second sponsorship agreement. The first agreement
was approved on 29 July 2010 for three years.
The sponsor has been in the 457 sponsorship program since 29 July 2010. At the time of
the monitoring audit, the sponsor had three 457 visa holders all in the same nominated
occupation: Café Restaurant Manager (ANZSCO 141111).
Regulation 2.89(3)(e): Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
Comments
The sponsor’s failure to satisfy its sponsorship obligations has had:
• direct impact on one visa holder Guamellee ENRIQUEZ and her ability to manage her
immigration status and an
• indirect impact on Australian citizens or Australian permanent residents and their ability to
seek employment and develop their skills and experience within the hospitality and retail
industry.
Regulation 2.89(3)(f): Whether, and the extent to which, the failure to satisfy the sponsorship
obligation was intentional, reckless or inadvertent
Comments
• Regulation 2.86 - Obligation to ensure primary sponsored person works or
participates in nominated occupation, program or activity
The sponsor did not ensure that the visa holders worked in their nominated position of
Café Restaurant Manager (ANZSCO 141111). The sponsor allocated lower tasks at the
lesser skill level of a hospitality worker. I consider that the failure to satisfy this obligation
was intentional and reckless.
• Regulation 2.87B - Obligation to provide training
The sponsor failed to satisfy this obligation to contribute toward training funds for the
financial year 2014/2015 and 2015/2016 for Australian workers within the hospitality and
retail industry. I consider that the failure to satisfy this obligation was reckless and
inadvertent.
• Regulation 2.84 - Obligation to provide information to Immigration when certain
events occur
The sponsor failed to satisfy this obligation to communicate with the department of
certain events. The sponsor stated in the NOITTA that it had informed a migration agent
of the certain event and had a belief that the migration agent would then inform the
department. The responsibility lies with the sponsor to notify the department of certain
events or circumstances. I consider that the failure to satisfy this obligation was reckless and inadvertent.
Regulation 2.89(3)(g): Whether, and the extent to which, the sponsor has cooperated with
Immigration, including whether the sponsor informed Immigration of the failure
Comments
The sponsor cooperated with the Department throughout the monitoring audit. The breaches
were identified during the monitoring audit. The sponsor, through its migration agents,
sought extensions on three occasions to prepare its response to the NOITTA.
Regulation 2.89(3)(h): The steps (if any) the sponsor has taken to rectify the failure to satisfy
the sponsorship obligation, including whether the steps were taken at the request of
Immigration or otherwise
Comments
• Regulation 2.79 - Obligation to ensure equivalent terms and conditions of
employment
Regulation 2.79 requires a sponsor to ensure it provides terms and conditions of
employment that are no less favourable than those approved at nomination (the
Guaranteed Annual Earnings (GAE).
o Ma Milagros RABUYO was paid $988.46 gross weekly which equates to
$51,4000/annum. Third party verifiable records (sponsor’s bank statements) showed
that the visa holder was not paid for three weekly pay periods. The sponsor did not
provide any records to support or show reasons for non-payments.
o Loida Anoneuvo ACUNA was paid $961.54 gross weekly which equates to
$50,000/annum. Third party verifiable records (sponsor’s bank statements) showed
that the visa holder was not paid for six weekly pay periods and also was underpaid
for one weekly pay period. The sponsor did not provide any records to support or
show reasons for non-payments or underpayment.
In the response to the NOITTA, the sponsor demonstrated that it has met this obligation
to ensure equivalent terms and conditions of employment were met. The sponsor
provided relevant records and rectified the wages underpayment and explained the nonpayment issues. The sponsor took its own initiative to back-pay the visa holder Milagros
RABUYO $49.61 and also provided statements that Loida Anoneuvo ACUNA took leave
without pay for the period between 11 January 2016 and 24 February 2016.
As a result of the monitoring audit, the sponsor developed a document “457 sponsorship
obligations compliance policy” to ensure it complies with its sponsorship obligations in
future. The document description focussed on position duties and employment contract
focus rather than wages, salaries and work hours.
I consider that the sponsor has demonstrated that it has rectified the issues therefore the
sponsor has satisfied this obligation Regulation 2.79.
• Regulation 2.86 - Obligation to ensure primary sponsored person works or
participates in nominated occupation, program or activity
The sponsor stated in its response to the NOITTA that two visa holders Guamalee
ENRIQUEZ and Ma Milagros RABUYO are no longer working at the take-away food
outlet located at Casuarina Shopping Centre as the business had ceased operations.
The sponsor further stated that both visa holders had returned to their nominated
positions at Fresh Cuisine, Shop 6, Hibiscus Shopping Centre.
The sponsor stated that visa holder Loida Anoeuvo ACUNA worked temporarily at
Nelson’s Seafood in order to work at a “slower pace …. due to difficulties coping with the
demands of her managerial role” and also for health reasons. The sponsor claimed that
it has rectified the situation by transferring the visa holder back to Fresh Cuisine to resume duties as a full-time Café Restaurant Manager.
As a result of the monitoring audit, the sponsor took the initiative to develop a document
“457 sponsorship obligations compliance policy” to ensure it complies with its
sponsorship obligations in future. The document stated that visa holders “only can be
employed in the occupation which they have been nominated for. This must be done on
a fulltime basis.”
I consider that the sponsor breached the obligation on three occasions.
• Regulation 2.87B - Obligation to provide training
The sponsor accepted that it has failed this obligation. The sponsor failed on two
occasions for both financial years 2014/2015 and 2015/2016. The sponsor stated in the
NOITTA that it would take immediate action to rectify the breach to pay 2% of its total
annual payroll expenditure to Charles Darwin University. To date, the sponsor has not
supplied evidence of the training contribution.
As a result of the monitoring audit, the sponsor took the initiative to create a document
“457 sponsorship obligations compliance policy” to ensure it complies with its
sponsorship obligations. The document stated that the sponsor “must continue to meet
the training requirements in one of the following ways: i) providing on the job training to
Australian citizens and permanent residents in employment such that amount equivalent
to at least 1% of the total annual payroll expenditure OR by donating an amount
equivalent to 2% of the total payroll expenditure to a registered training fund such as the
Charles Darwin University Foundation. This requirement must be complied with in each
year of being a standard business sponsor.”
• Regulation 2.84 - Obligation to provide information to Immigration when certain
events occur
The sponsor accepted that it has failed this obligation. As a result of this failure, the
sponsor took the initiative to develop a document “457 sponsorship obligations
compliance policy” to ensure it complies with its sponsorship obligations in future
Regulation 2.89(3)(i): The processes (if any) the sponsor has implemented to ensure future
compliance with the sponsorship obligation
Comments
The sponsor developed a policy/corrective action plan with a detailed process to ensure that
it complies with the 457 sponsorship obligations in future. The sponsor acknowledged that it
has a responsibility to notify the department of certain events or circumstances that may
arise instead of relying on migration agents or third parties.
Regulation 2.89(3)(j): The number of other sponsorship obligations that the sponsor has
failed to satisfy and the number of occasions on which the sponsor has failed to satisfy other
sponsorship obligations
Comments
The sponsor failed to satisfy one other obligation other than Regulation 2.89.
• Regulation 2.90 - Provision of false or misleading information – on one occasion.
Regulation 2.89(3)(k): Any other relevant factors
Comments
The sponsor has been in the 457 sponsorship program since July 2010. The current
sponsorship agreement was approved on 27 March 2014 and is valid for three years until 27
March 2017.
Whilst this is the first time that the sponsor has been monitored it has received two departmental site visits: Education Visit on 07 September 2011 and 457 nomination preverification site visit on 16 April 2013. It is therefore expected that the sponsor would have developed an understanding of its sponsorship obligations during those visits and over the past six years
Regulation 2.90 - Provision of false or misleading information
As I have determined that the sponsor has provided false or misleading information to the
Department, I must take into account the criteria outlined in Regulation 2.90(3) in determining what action to take under s140M of the Act.
Regulation 2.90(3)(a): The purpose for which the information was provided
Comments
In response to the Reg 2.83 Notice, the sponsor provided copies of rosters and timesheets
for the periods as outlined in the NOITTA for three visa holders: Milagros RABUYO, Loida
Anoneuvo ACUNA and Ramphel ACUNA. The sponsor did not provide rosters and
timesheets for one visa holder: Guamelee ENRIQUEZ.
The WORD document properties showed that the rosters were created on 16 September
2016 and appeared to be created for the purpose of monitoring audit. The department
identified that the information contained within the rosters did not correspond with
information held by the department. The department had reasonable grounds to believe the
rosters were false and were created in order to mislead the department.
In response to the NOITTA, the sponsor admitted that it “re-created” records in order to
satisfy the request from the department.
Regulation 2.90(3)(b): The sponsor’s past and present conduct in relation to Immigration
Comments
The sponsor’s conduct during the monitoring audit was cooperative. The sponsor had not
been monitored before. The sponsor responded to both Reg 2.83 Notice and NOITTA. The
sponsor was not timely with its responses to the NOITTA with several requests for
extensions. The sponsor has had two previous dealings with the department with 457
Education Visit on 07 September 2011 and 457 Nomination pre-verification site visit on 16
April 2013.
Regulation 2.90(3)(c): The nature of the information
Comments
In response to the Reg 2.83 Notice, the sponsor provided copies of rosters and timesheets
for the periods as outlined in the NOITTA for three visa holders: Milagros RABUYO, Loida
Anoneuvo ACUNA and Ramphel ACUNA. The sponsor did not provide rosters and
timesheets for one visa holder Guamellee ENRIQUEZ.
The WORD document properties showed that the rosters were created on 16 September
2016 for the purpose of the monitoring audit. The department had information that did not
correspond with the rosters and timesheets provided by the sponsor.
• Milagros RABUYO stated that she worked six days per week. This information was not
reflected in the rosters and timesheets;
• Loida Anoneuvo ACUNA stated that she sometimes worked on Saturdays. This
information was not reflected in the rosters and timesheets;
• Ramphel ACUNA stated that he sometimes worked on Saturdays and Sundays. This
information was not reflected in the rosters and timesheets.
The department had reasonable grounds to believe the rosters and timesheets were false
and misleading and were intended to mislead the department.
Regulation 2.90(3)(d): Whether, and the extent to which, the provision of false or misleading
information has had a direct or indirect impact on another person
Comments
The sponsor’s actions in re-creating the rosters and timesheets had indirect impact on the
visa holders and their personal reputation.
Regulation 2.90(3)(e): Whether the information was provided in good faith
Comments
In the response to the NOITTA, the sponsor admitted that it provided fabricated information
to the department. The sponsor claimed that he did not keep records and re-created
rosters and timesheets based on recollection and payslips. The sponsor claimed that it
provided the information in good faith in response to Reg 2.83 Notice with no intention to
defraud or mislead the department.
Regulation 2.90(3)(f): Whether the sponsor notified Immigration immediately upon
discovering that the information was false or misleading
Comments
The sponsor did not notify the department in its response to the Reg 2.83 Notice that the
rosters and timesheets were “re-created” based on recollection and payslips. The
department identified and discovered the records were fabricated during the monitoring
audit. In the response to the NOITTA, the sponsor admitted that it had “re-created” the
records.
Regulation 2.90(3)(g): Any other relevant factors
Comments
The sponsor’s actions in re-creating the records were intentional and reckless. The
sponsor’s actions were an attempt to undermine the integrity and delivery of the 457
sponsorship program.
The sponsor stated in the NOITTA response that it is “the only café in the shopping centre”.
The department has identified that the shopping centre has at least four food outlets
including one other café.
Decision
Under Section 140M(1)(c) of the Act I have made a decision to bar the sponsor from
sponsoring more people for Subclass 457 Temporary Work (Skilled) visas for two years from
today’s date.
Under Section 140M(1)(d) of the Act I have made a decision to bar the sponsor for two years from making future applications for approval as a standard business sponsor.
…

The Tribunal is satisfied that the monitoring and subsequent sponsorship bar decision identifying a number of sponsorship breaches by the applicant constitute ‘adverse information’ for the purposes of r.1.13A.
In addressing this issue, the applicant’s agent made the following written submissions:
…
The sponsor was subject to monitoring by the Department and on the 31 January 2017, was
subject to a sanction. They were consequently banned for a period of two years ending 31
January 2019.
The company has changed representatives since they were last monitored and has also
rectified the deficiencies according to the monitoring unit’s requirements. Unfortunately,
despite that their previous representative may not have reported change in circumstances
on their behalf, the applicant remains fully responsible for reporting matters, regardless that
it was their representative’s fault that it was not.
The applicant has since complied with all other sponsor obligations including contributing
appropriately to a reputable industry training fund prior to nominating the nominee for the
subclass 187 TRT pathway.
Further, five and a half years can be considered as significant having already elapsed since
the sponsor monitoring unit has found a breach of sponsor obligations in 2017 and banned
the applicant from sponsoring overseas skilled workers. It was a great learning curve for the applicant. The ban was lifted on the 31 January 2019.
…
The Tribunal has considered the available evidence, including the oral evidence of Mr Nelson Acuna at hearing, and has concluded that it is reasonable to disregard this adverse information in this case, for the following reasons:
·the conduct found to be in breach of the applicant’s sponsorship obligations took place in 2016 – 2017, some 6 years ago;
·the sponsorship bar imposed by the Department expired in January 2019, over 4 years ago, and the Department has subsequently approved a nomination by the applicant;
·the breaches identified by the Department were rectified by the applicant, including back payment of employee wages and training contributions, realignment of the duties of nominated employees to comply with their nominated occupations, and implementation of better record keeping by the applicant;
·the applicant currently operates only 1 business, compared to the 6 or so businesses it operated at the time that the breaches occurred. In the Tribunal’s view, this reduces the chances of such breaches occurring again, as the possibility of employees working in a different business from the one for which they were nominated is reduced; and
·the applicant has provided evidence of its ongoing training contributions.
While the Tribunal does not condone any of the breaches identified by the Department (particularly not the fabrication of timesheets and other documents in response to the Department’s monitoring requests) it accepts that these are historical breaches, that the applicant genuinely took action to rectify these matters, and that there is no recent evidence that it has failed to comply with its sponsorship obligations.
Accordingly, the Tribunal considers it reasonable to disregard this adverse information in this case.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is the Northern Territory, the relevant occupation is Café or Restaurant Manager and the date of application is 18 June 2019.
There is no evidence that it is mandatory in the Northern Territory for a person to hold a licence or registration, or be a member of a professional body, to work as a Café or Restaurant Manager.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no recent evidence before the Tribunal to indicate that the applicant has not complied with Commonwealth or Northern Territory employment laws.
To the extent that it may have done so during the period when the Department found that it had breached its sponsorship obligations (2016-2017), such as by underpaying some of its employees, the Tribunal is satisfied that it rectified these underpayments and other breaches.
Given this, the Tribunal finds that overall, the applicant has a satisfactory record of compliance with the laws of the Commonwealth and the Northern Territory.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
There is no evidence before the Tribunal to suggest that the applicant owes unpaid nomination training contribution charges or penalties for underpayments.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Visa held by identified person at time of application - reg 5.19(5)(a)
Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:
·a subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or
·a subclass 482 visa in the Medium-term stream; or
·for persons specified in a legislative instrument, a subclass 482 visa in the Short-term stream; or
·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a subclass 186 or 187 visa.
The Tribunal has reviewed the Department’s records and is satisfied that at the time that the nomination application was made on 18 June 2019, the nominee held a subclass 457 visa, which he was granted on the basis of satisfying the Standard Business Sponsorship stream (for which he had been sponsored by the applicant in this case).
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.
Occupation requirements – regs 5.19(5)(b), (c), (d)
A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Café or Restaurant Manager.
Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held subclass 457 or 482 visa was granted: reg 5.19(5)(b).
Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made, and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c). The relevant instrument specifying the occupation in this instance is IMMI 19/047, which does not contain any occupational caveats applicable to a Café or Restaurant Manager.
Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).
For the reasons set out more fully below in the Tribunal’s discussion of rr 5.19(5)(j) and (k), the Tribunal is satisfied that the nominated position is genuine, and genuinely needed within the business. As such, the Tribunal finds that there is no information known to Immigration that indicates that the nominee Mr Ramphel Acuna is not genuinely performing the tasks of a Café or Restaurant Manager as specified in ANZSCO. To the extent that the delegate relied on a finding that there was another sponsored Café or Restaurant Manager working within the business at the time of the primary refusal visa, the Tribunal is satisfied that this is no longer the case, and that the nominee is the only person employed in this position in the applicant’s business in 2023. It therefore considers it reasonable to disregard the information relied upon by the delegate.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.
Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)
Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).
Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made:
·a subclass 457 visa in the Standard Business Sponsorship stream, or
·a subclass 482 visa in the Medium-term stream, or
·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a subclass 482 visa in the Short-term stream.
Secondly, unless the subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 3 years during the period of 4 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.
If the subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least 3 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made. The relevant instrument is IMMI 18/035 and the Tribunal is satisfied that it does not include the nominated occupation of Café or Restaurant Manager.
In this case, the nomination application was made on 18 June 2019. The relevant instrument made under reg 5.19(6) is LIN 22/038. Having regard to the terms of that instrument, the Tribunal finds that it is applicable (as the applicant held a subclass 457 visa on 18 April 2017 and is therefore a specified subclass 457 visa for the purposes of the instrument), and has applied the modified time periods as set out in the instrument (2 years out of 3 years, instead of 3 years out of 4 years).
From its review of the Department’s records, the Tribunal is satisfied that the nominee was granted a subclass 457 visa on 19 June 2015, which was valid until 19 June 2019. It is further satisfied, from the Department’s records and evidence provided by the applicant, that the nominee worked full time in the occupation of Café or Restaurant Manager for the applicant in Australia while holding this visa. His employment totalled approximately 4 years by the time that the nomination application was made on 18 June 2019.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (g) are met.
Status of the nominator – reg 5.19(5)(h)
Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.
The Tribunal has reviewed the Department’s records and is satisfied that the applicant was the standard business sponsor who last identified the nominee in a nomination approved under s.140GB of the Act.
It is further satisfied that the applicant is lawfully and actively operating a business in Australia, based on the financial information provided to the Tribunal in May and June 2023, and the oral evidence provided by Mr Nelson Acuna and the nominee at hearing in June 2023.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.
Genuine need for employment – regs 5.19(5)(j) and (k)
Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in the relevant instrument made under reg 2.72(13): reg 5.19(7).
The Tribunal is satisfied that the occupation of Café or Restaurant Manager is not specified in the relevant instrument under r.2.72(13) and therefore the applicant must meet rr.5.19(5)(j) and (k).
The Tribunal is satisfied that the nomination application identified a need for the nominee, Mr Ramphel Acuna, to be employed in the nominated position under the direct control of the applicant.
In relation to whether the applicant has a genuine need for the nominated position, the Tribunal gives weight to the following factors:
·the nominee has been employed in the nominated position with the applicant (specifically, in the Fresh Cuisine café) since June 2015;
·although previously, the applicant operated several different food businesses, and sponsored and employed a number of Café or Restaurant Managers, it currently only operates the Fresh Cuisine café, for which the nominee is the long standing Café or Restaurant Manager;
·the position description and oral evidence of Mr Nelson Acuna and Mr Ramphel Acuna at hearing indicate that the nominee Mr Ramphel Acuna is carrying out the full range of duties set out in ANZSCO for a Café or Restaurant Manager; and
·although Mr Nelson Acuna and Mr Ramphel Acuna are related (being uncle and nephew), the Tribunal is satisfied that Mr Ramphel Acuna is genuinely employed on a full time basis to manage Fresh Cuisine, and that Mr Nelson Acuna has, since 2016-2017, stepped back significantly from running the business himself due to his serious and ongoing health issues.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.
Future employment – regs 5.19(5)(l), (m), (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument 18/035): reg 5.19(7). As noted above, the Tribunal is satisfied that the nominated occupation of Café or Restaurant Manager is not specified in IMMI 18/035, so r.5.19(5)(l) must be met in this case.
Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The Tribunal has reviewed the most recent employment contract between the applicant and the nominee, dated 20 June 2023, and is satisfied that it offers full time employment (38 hours per week minimum) for a further 2 years from the date of the grant of permanent residence to the nominee, at an annual salary of $65,000 plus superannuation. There is no express exclusion of the possibility of extending the period of employment.
In relation to the applicant’s financial capacity to pay the proposed salary, the Tribunal notes that the most recent financial statements (for 2021/2022) indicate that the applicant’s revenue increased from approximately $1.4 million to $1.6 million, and its expenses included $633,620 in wages and salaries and $61,517 in superannuation payments. The BAS for the third quarter of 2022 shows total sales of $503,216. The evidence from Mr Nelson Acuna at hearing was that the applicant had continued to recover well from COVID19-related restrictions. Evidence has also be provided of the applicant’s payment of the nominee’s salary to date.
Given this, the Tribunal is satisfied that the applicant has the financial capacity to pay the proposed salary to the nominee for at least 2 years.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met.
Annual earnings – reg 5.19(5)(o)
Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033 (currently $250,000). Regulation 2.57A provides for the meaning of ‘earnings’.
Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT) (currently $53,900), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
Item 8 of IMMI 18/033 provides that the method for determining the AMSR where there is not an Australian worker performing equivalent work is:
…
For the purposes of subregulation 2.72(17) of the Regulations, and where section 7 of this instrument does not apply and:
(a) where there is a fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation, or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an equivalent Australian worker specified in those instruments.
(b) Where there is no fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information.
…
As per the most recent employment contract, there is an applicable Australian award, being the Restaurant Industry Award [MA000119]. Under that Award, a level 5 clerical supervisor (the most experienced supervisory role) has a base weekly rate of $999.90, which annualises to $51,995 (rounded to nearest dollar).
Accordingly, the Tribunal is satisfied that the AMSR for this case is $51,995, determined in accordance with item 8 of IMMI 18/033. For these reasons the requirements of reg 2.72(15)(c) are met.
The Tribunal acknowledges that this amount is slightly less than the TSMIT of $53,900 but considers it reasonable in the circumstances to disregard this criterion, as the ASMR is the base weekly rate of pay and does not include any of the loadings in the Award that apply to late nights and/or weekend work. The Tribunal is satisfied that these, added to the ASMR, would exceed $53,900 per year.
For these reasons, the requirements of reg 2.72(15)(d) are met.
The Tribunal is satisfied that the nominee’s annual earnings of $65,000 are not less than the AMSR.
For these reasons, the requirements of reg 2.72(15)(e) are met.
It is further satisfied that the nominee’s annual earnings exceed the TSMIT.
For these, reasons the requirements of reg 2.72(15)(f) are met.

100. Finally, the Tribunal is satisfied that there is no information that indicates that the AMSR is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.
101. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.
No information to indicate less favourable employment conditions – reg 5.19(5)(p)
102. Regulation 5.19(5)(p) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
103. The Tribunal has reviewed the nominee’s most recent employment contract and is satisfied that there is no current information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable to those would apply, to an Australian citizen or permanent resident performing equivalent work at the same location.
104. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.
Information required by the Minister – reg 5.19(5)(q)
105. Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.
106. The Tribunal is satisfied, having reviewed the Department file and the online nomination application, that the applicant has provided the information required for the purposes of rr.5.19(k) and (n).
107. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.
108. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
109. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alison Mercer
Member

Attachment – extracts from the migration regulations 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.

Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(p)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

Minister may vary certain Temporary Residence Transition stream requirements
(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).
(8)The Minister may, by legislative instrument, specify:
(a)occupations for the purposes of paragraph (5)(c); and
(b)persons who are exempt from the operation of that paragraph; and
(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(i)the nominator;
(ii)the identified person;
(iii)the occupation;
(iv)the position in which the identified person is to work;
(v)the circumstances in which the occupation is undertaken;
(vi)the circumstances in which the person is to be employed in the position.

[2023] AATA 2362

23 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Breach

Statutory Construction

Standing