Tulip Three Pty Limited (Migration)

Tulip Three Pty Limited (Migration) [2022] AATA 2179 (6 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Tulip Three Pty Limited
REPRESENTATIVE:  Mr Steven Rapeport (MARN: 0425738)
CASE NUMBER:  1907770
HOME AFFAIRS REFERENCE(S):          BCC2019/1174776
MEMBER:Namoi Dougall
DATE:06 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 06 June 2022 at 2:57pm

CATCHWORDS
MIGRATION–nomination – Direct Entry stream – Café or Restaurant Manager – nominee is genuinely carrying out the full duties and responsibilities of a Café or Restaurant Manager – tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument –genuine need to employ a paid employee to work in the position– no adverse information – applicant was approved as a standard business sponsor –– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73, 5.19
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hneidi v MIAC [2010] FCAFC 20
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Qiao v MIAC [2008] FMCA 380
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 26 March 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 8 March 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of 3 alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(8) because the delegate found that the applicant’s business was a limited service restaurant and, therefore, the position associated with the nominated occupation was not applicable for Subclass 482 visa applicants.
Mr Daniel Panebianco, a director of the applicant, appeared on behalf of the applicant before the Tribunal on 26 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms Deborah Marziliano.
The applicant was represented in relation to the review.
BACKGROUND
The business nomination application indicated that the nominee would be employed as a Café or Restaurant Manager (ANZSCO 141111) on an annual salary of $50,000 for 38 hours at the applicant’s business, Ralph’s Café on the Boardwalk, in Camperdown, Sydney NSW (the Café). The annual turnover of the business was stated to be $1,025,598. Further, the applicant indicated in the business nomination application that the applicant has 6 employees, one of whom was foreign.
At the hearings Mr Panebianco stated his parents started the family business 38 years ago. Catering was incorporated into the business and then 7 to 8 years ago another café on campus, Ralph’s Café at the Rena Sports Centre, became part of the business. The director of the other café is his mother, and he is a director of Ralph’s Café on the Boardwalk. Before he purchased the Café, he was looking for a kitchen to keep up with the catering business. The landlord of the Café offered the buisness as a going concern with a large kitchen. The large kitchen allowed a front of house and back of house operation. The Boardwalk Cafe has been operating 7 years in August.
Currently, the applicant has 8 staff: a kitchen hand; 3 chefs, including Mr Panebianco; a catering manager, who is the nominee; and 5 front of house staff.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s 140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant, Ms Deborah Marziliano, as the person who will work in the occupation, as required by regs 2.73(1) and (8). The nomination was made using the approved form and the fee has been paid as required by regs 2.73 (3),(4) and (5). The nomination includes the location of Camperdown in Sydney, NSW at which the occupation will be carried out and includes the name, 6‑digit ANZSCO code of the occupation of Cafe or Restaurant Manager (ANZSCO 141111), the proposed period of stay of up to 2 years and the annual turnover for the nominator of AUD1,025,598, as required by reg 2.73(9). The nomination does not apply in the Labour Agreement stream and the occupation is for a Short-term skilled occupation in the Short-term stream as required by reg 2.73(6).
The nomination includes written certification that:
·The person has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.
·The employment contract with the nominee complies with or will comply with Commonwealth and State or Territory laws unless the occupation is exempt, as required by reg 2.73(13).
·The tasks of the position include a significant majority of the tasks specified in the ANZSCO or the relevant instrument if there is no ANZSCO code; the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or the relevant instrument if there is no ANZSCO code; and, unless the occupation is exempt, the person is in the person’s business, if they are or would be an overseas business sponsor, or, the position is in the person’s business or an associated entity’s business, as required by reg 2.73(14).
The application fee was paid by the applicant and there is nothing on the Department’s file to indicate that the nomination training contribution charge has not been paid. Therefore, the Tribunal is satisfied that the requirements of reg 2.73(5A) have been met.
For these reasons, the Tribunal is satisfied the requirements in reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
Having regard to the facts, matters and circumstances available to the Tribunal, the Tribunal is satisfied that there is no adverse information known to Immigration about the applicant or a person associated with the applicant.
For these reasons, the requirements in reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The Tribunal finds that the applicant is a standard business sponsor pursuant to a valid sponsorship agreement for the period from 15 March 2019 to 15 March 2024, and that the application is for the Medium-term stream for the nominee.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
The Tribunal has no evidence before it that the person has any outstanding debt under s 140ZO.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position.
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.
The nomination has nominated the nominee in the application for the occupation of Café and Restaurant Manager (ANZSCO 141111).
In the circumstances of this case, the relevant instrument, IMMI 18/048, states the occupation of Café and Restaurant Manager (ANZSCO 141111) is not applicable for Subclass 482 visa purposes for persons who will work in positions where:
7. The position is involved in mass production in a factory setting.
8. The position is in a limited service restaurant.
The Tribunal has reviewed the application and finds that the nominated occupation is for a Subclass 482 (temporary skill shortage) visa in the short term stream. The Tribunal is satisfied that the occupation of Café and Restaurant Manager applies to the nominee as required by the relevant legislative instrument.
Caveat 7 is not applicable to the circumstances of the applicant’s business. In relation to caveat 8, ‘limited service restaurant’ is defined in IMMI 17/060 and includes the following:
(a) a fast food or takeaway food service;
(b) a fast casual restaurant;
(c) a drinking establishment that offers only a limited food service;
(d) a limited service cafe, including a coffee shop or mall cafe;
(e) a limited service pizza restaurant.
The Department’s Procedures Advice Manual (PAM3) provides the following guidance on assessing whether the ‘inapplicability conditions’ apply:
A caveat is in place for this occupation which excludes positions involved in mass production in a factory setting and positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, the following:
fast food or takeaway food services;
fast casual restaurants;
drinking establishments that offer only a limited food service;
limited service cafes;
limited service pizza restaurants…
This caveat is designed to ensure that in the context of this occupation, employer sponsored skilled visa programs continue to be used for skill level 3 cook positions only – that is, positions in a dining establishment that involve preparing, seasoning and cooking food.
In exercising its power on review, the Tribunal should have regard to policy as a relevant consideration. However, policy is not binding on the Tribunal: Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380. The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or, in the case of the exercise of a discretionary power (which is not relevant in the circumstances of this case), the preferable decision: Hneidi v MIAC [2010] FCAFC 20 (Spender, Emmett and Jacobson JJ) at [34].
At the hearing Mr Panebianco stated that he can seat just under 50 covers inside and he can seat 80 covers outside. The Cafe operates from 6:00 am to 4:00 pm. Customers order at the counter and are given a buzzer and they collect the food when it is ready. When it is quiet there is table service. The menu has a separate breakfast and lunch menu with the breakfast menu finishing at 11:00 am. The Café has a weekly special. The Café is licensed and he is the licensee.
At the hearing Mr Panebianco stated that currently, catering is about 40% of the business. Pre-COVID there was a 50/50 split between catering and front of house sections of the business and they are aiming to get back to that split. The catering side of the business may need the kitchen to operate outside of the hours referred to above but not all of the time.
The Tribunal was provided with a seating map of the Café, photographs of the front and back of house at the Café and with copies of the Café’s menus. In light of this evidence and the evidence at the hearing, the Tribunal finds that the applicant’s Café is not a limited service restaurant and that caveat 8 is not relevant to the circumstances of this review. For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The applicant provided the position description for the nominee for the position of Catering Manager, which stated that her responsibilities included:
Responsibilities:
·     Oversee the catering function as well as managing the day-to-day operations of the café:
·     Gathering tailored catering requirements from our Corporate & Individual Customers.
·     Planning Food & Beverage menu considering clients preferences and special requests (including dietary requirements).
·     Determining requirements in ingredients and setting portions
·     Oversee food preparation, presentation, variety, and customer service
·     Manage stock and order placement as needed on suppliers
·     Ensure compliance with health and safety regulations and record keeping
·     Co-ordinate delivery schedules of catering orders
·     Ensure all orders are completed in time
·     Training of new Staff
·     Supervision of staff members (back of house and front of house)
·     Building strong relationships with our customers and suppliers
·     Placing of daily orders with suppliers
·     Organise Staff Shifts/Rosters
·     Manage front of house to ensure that staff are working to full capacity and delegate to help each other section of the café
·     Promote a team environment amongst staff members
·     Social media and organise café promotions amongst the Colleges and facilities within the university to help boost up our business
·     Responsible for organising cleaning rosters in the two cafés and general maintenance
At the hearing, Mr Panebianco stated that the nominee is his right hand person. When she starts work, she checks the front of the shop and tells the chef what will be on the takeaway menus. She arranges the catering by checking what needs to be done and what orders have come in overnight. She arranges for the chef to prepare the catering and takeaway part of the buisness. Mr Panebianco ensures stock levels are full as they make everything onsite. The nominee will ensure that the stock is there for what she needs for the catering orders. The nominee promotes the Café by social media; prepares invoices and takes payments; and she liaises with the customers, including working with customers who have a budget as she will tailor the catering for them. For large catering events she will go on site to assess the need for kitchens or cool rooms. The Café has catered for wedding, funerals, 21sts, Christmas functions and Melbourne Cup functions.
At the hearing Mr Panebianco stated that the nominee does not do much more in the Cafe except when they are busy, and then she will come and assist, mainly in front of house. Mr Panebianco stated that the nominee trains front of house staff based on her previous work in the front of house of the Café.
At the hearing the nominee stated that her day starts at 8:00 am when she checks her catering orders for the day and liaises with the chefs as to the quantities she needs to prepare the orders. The food is prepared, and she checks that it is all prepared and packed. Once the catering is sorted, she: goes into her office and takes payments; takes new orders; calls customers to check on the catering quality; organises the rest of the catering for the next few days as well as the ordering; and places any orders needed. She will speak with Mr Panebianco or the kitchen about what is needed and whoever finishes work first will order the food. The nominee also stated she takes care of the cleaning schedule and checks pest control has been done regularly, as well as range hood cleaning. She is also responsible for liaising with staff to ensure they are happy, and supervising staff and training. She also sometimes delivers the catering and for big events she is onsite to ensure everything goes smoothly, particularly the setting up.
The nominee stated at the hearing that she is being paid $78,000 per annum.
Also provided to the Tribunal was a position description for Mr Panebianco for the position of Head Chef/Director of the business/company/trust, which stated that his responsibilities included:
·     Oversee all cooking and managing the day-to-day operations of the kitchen:
·     Oversee all cafe and catering operations
·     Negotiate prices with wholesalers
·     Quality control
·     Food costing and food pricing for cafe
·     Food costing and food pricing for catering
·     Hiring of management staff and chefs
·     Delivering catering orders / assist with set up
·     Deliver food prep and meals to Ralph’s Cafe at the arena sports centre
·     Buying cafe and catering equipment
·     Meetings with chefs and managers to make sure standards are met and operations of business are up to standard
·     Overseeing food safety and general health regulations are in practices and in place
·     Cooking and prepping food for cafe menu
·     Cooking and prepping food catering menu
·     Balancing tills and daily takings
·     Liaise with Bookkeeper (Karen McMaster/Goldschmied) and Rosa Panebianco who runs the accounts side of business for payment of accounts and financial planning.
·     Customer relations
·     Help cover shifts and workload across cafe and catering staff
·     Liaise and work alongside Catering Manager (Deb) with seasonal menus for cafe and tailored menus for catering
·     Help manage and oversee catering events
·     Keeping up with food and alcohol trends
·     Ordering and buying of alcohol
·     Maintaining Annual Gold License Catering Certificate
·     Ensure Catering Van is clean and maintained within food caring Standards
·     Monitor food waist and expiry dates
·     Manage employees who work in the kitchen
At the hearing Mr Panebianco stated that wherever he is needed in the Café is where he will work, including: working with the Chefs and cooking; working on the catering and delivering the catering; organising the specials; quality control; placing and negotiating orders; meeting with staff; and washing the dishes. Mr Panebianco is the licensee and is responsible for the responsible service of alcohol and training of staff in this. He is also responsible for OH&S, including any repairs of the premises. Other responsibilities include: buying equipment and arranging any repairs; cashing up and preparing floats; pricing the menu, which is part of negotiating with suppliers; sourcing new suppliers; and hiring of managerial and chef roles.

In considering the nature of the position and the tasks to be performed in the position, and whether they correspond with the tasks of the occupation of Café and Restaurant Manager, which is specified in the relevant instrument, the Tribunal has had regard to the information set out in ANZSCO (Australia and New Zealand Standard Classification of Occupations) for that occupation. The tasks for the unit group 1411 Cafe and Restaurant Managers are as follows:
·     planning menus in consultation with Chefs
·     planning and organising special functions
·     arranging the purchasing and pricing of goods according to budget
·     maintaining records of stock levels and financial transactions
·     ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
·     conferring with customers to assess their satisfaction with meals and service
·     selecting, training and supervising waiting and kitchen staff
·     may take reservations, greet guests and assist in taking orders
Further, in relation to the occupation of Café and Restaurant Manager, ANZSCO states that people in that occupation: “organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.”
Provided to the Department and Tribunal was a Full Time (Award) Employment Contract dated 8 March 2022 (the employment contract) which is signed by the nominee and Mr Panebianco as a director of the applicant.
At the hearing, Mr Panebianco stated that it is a big operation, given that there is the Café and catering, and that most of the work of the nominee is catering, but it is not all catering as the nominee picks up where she needs to be.
At the hearing Mr Panebianco stated that the nominee fills in for his role when he is not available, which allows him to have a work/life balance.
At the hearing the Tribunal discussed the negative equity as at 28 February 2022 and Mr Panebianco stated that at that time the students were not back on campus, and as with other years, once students return in March, the turnover and profit pick up. Further, out of semesters, the University hires out rooms and the applicant is a preferred caterer so catering picks up.
In a statement provided after the hearing, the Tribunal was advised that the catering revenue for the year to 31 May 2022 was 42.5% of the business and that the business at the other Café for the period ending 31 May 2022 was $607,500. It was further submitted that the catering business of the Café had become busy again, with orders confirmed to the value of $15,756.95.
Also provided to the Tribunal were a draft profit and loss statement and a balance sheet for the year ending 31 May 2022, which indicated that the turnover for that period was $399,205 and the profit was $6,794. The total equity for the period was minus $5,895. The total equity has improved from 28 February 2022, when it was minus $49,342. The Tribunal was concerned that the applicant would not have the financial capacity to employ the nominee in the position but is satisfied on all the evidence that the total equity in the buisness is improving and that the business will be able to continue to employ the nominee.
On the above evidence, the Tribunal is satisfied that the nominee currently performs nearly all of the tasks listed in ANZSCO for a Café and Restaurant Manager, as does Mr Panebianco. Many of the duties are shared, and the Tribunal accepts that this is due, in part, to them being responsible for separate sections of the business. The Tribunal also accepts that the nominee fills in for Mr Panebianco when he is not available. Therefore, on all the evidence, the Tribunal is satisfied that the position associated with the nominated occupation is genuine.
On the evidence, the Tribunal is also satisfied that the position is full time.
For the above reasons the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/035. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). The applicant is not an overseas business sponsor and reg 2.72(11) must be met.
As referred to above, the Tribunal has been provided with an employment contract dated 8 March 2019. For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. 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), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’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): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’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: reg 2.72(15)(f) and reg 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).
The employment contract dated 8 March 2019 between the applicant and the nominee indicates that the nominee’s salary is $60,000 plus the superannuation guarantee for a 38 hour week. Other terms and conditions include leave and termination pay entitlements. As referred to above, subsequently, the Tribunal was provided with the salary increase letter of 14 February 2022, which indicates that the applicant will be paid $78,012.48 in accordance with cl 4.1(a) of the contract. The amount specified in the relevant instrument for the purposes of reg 2.72(15)(b) is $250,000. 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.
The employment contract states at cl 2.3 that the terms and conditions of the nominee’s employment will be in accordance with the employment contract and, where applicable, the industrial instrument, which is set out in item 5 of the schedule as the Restaurant Industry Award 2010, now the Restaurant Industry Award 2022 MA000119 (the Award).
Clause 9.2 of the employment contract states that the nominee’s “pay is inclusive of any and all penalties, allowances, over time and loadings which may otherwise be payable”.
The Tribunal will first consider s 8(1) of the legislative instrument and if there is a fair work instrument, state industrial instrument or transitional instrument that is ‘applicable’ to the nominated occupation. The terms and conditions of the nominee’s employment, including her annual salary, is subject to the employment contract. As stated above the employment contract stated that the salary of the nominee is $60,000 per annum and, in accordance with cl 9.2, inclusive of any and all penalties, allowances, over time and loadings which may otherwise be payable. The Tribunal is satisfied that the wording of cl 9.2 excludes the Award in so far as it applies to rate of pay. There is nothing in the Award or the employment contract that indicates that the nominee’s current salary of $78,012.48 is less than what the nominee would be paid under the Award. The nominee’s salary is greater than the Award rate for a level 5 Food & Beverage supervisor, which has a base rate of $955.90 per week, which equates to $49,706.80 per annum and, therefore, the Tribunal is satisfied that the nominee is not prejudiced by the employment contract as to the salary, because it is more generous than the Award. Further, the Tribunal finds that the Award is not applicable and there is no applicable fair work instrument, state industrial instrument or transitional instrument.
Determination of the annual market salary rate is set out in s 8(2) of the legislative instrument, which applies in circumstances where there is no fair work instrument, state industrial instrument or transitional instrument that is applicable to the nominated position. In those circumstances, the annual market salary rate for the nominated occupation is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant material.
Provided to the Tribunal was a Restaurant Manager Salary report from Seek, which indicated that the range of salaries was from $70,000 to $80,000, with the median being $75,000. Also provided was information from the Australian Government’s website, JobOutlook, for Café and Restaurant Manager, which indicated that the median for all salaries was $69,992. The information provided comes within the definition of ‘relevant information’ set out in the relevant instrument. The relevant information indicates that the range of salaries is from just over $60,000 to $80,000. As the Seek survey is for Restaurant Managers, the Tribunal accepts the median indicated on that market salary report of $75,000 as being the annual market salary rate for a Restaurant Manager. Therefore, the Tribunal is satisfied that the annual market salary rate for the nominated occupation of Restaurant Manager is $75,000.
As the annual salary rate has been determined in accordance with the relevant instrument and is greater than the TSMIT, the requirements of reg 2.72(15)(c) and reg 2.72(15)(d) are met.
Further, on the above the Tribunal is satisfied that the nominee’s annual earnings in relation to the nominated occupation will not be less than the rate for the occupation and, excluding non-monetary benefits, not less than the TSMIT. Therefore, the Tribunal is also satisfied that the requirements of regs 2.72(15)(e) and 2.72(15)(f) are met.
Further, the Tribunal has considered the entirety of the Departmental file provided to the Tribunal and there is no information on the file to indicate that there is any information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation. Therefore, the Tribunal is satisfied that the requirements of reg 2.72(15)(g) are met.
On the above, the Tribunal is satisfied that the requirements of reg 2.72(15) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
The Tribunal has considered the information and evidence provided to the Department and Tribunal, including the employment contract dated 8 March 2019 There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. For these reasons the requirements of reg 2.72(18)(a) are met.
Further, there is no information before the Tribunal which indicates that the applicant has engaged in any discriminatory recruitment practices. For these reasons the requirements of reg 2.72(18)(b) are met.
Labour market testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period, as set out in instrument IMMI 18/036. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous 4 months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI18/036, which is 4 months up to the day of the lodgement of the nomination application.
It is not inconsistent with any international trade obligation to require the applicant to satisfy labour market testing as specified in the relevant legislative instruments: IMMI 18/219 and 20/029.
The applicant is not exempt from satisfying the labour market testing condition by s 140GBB – Major Disaster Exemption, as the Minister has made no such exemption in this case.
Provided to the Department was an advertisement placed on CareerOne and an invoice for the advertisement dated 1 January 2019, and an advertisement placed on Seek.com on 29 November 2018, together with an invoice for the Seek.com advertisement. The business nomination application form indicated that there were 43 applicants for the position, but none had the relevant qualifications and some did not have work rights. Both advertisements were for a Catering Manager, a specialisation within the nominated occupation’s unit group, and were dated within the 4 months before the nomination application form was lodged on 8 March 2019. The Tribunal is satisfied that the requirements of s 140GBA(3)(a) and (4) are met. The Tribunal is also satisfied that the nomination application was accompanied by evidence of labour market testing and the requirements of s 140GBA(3)(b)(i) and (6A) are met.
The advertisements for a Catering Manager, a specialisation within the unit group: were in English; were placed on a recruitment website with national reach within Australia, being Seek and CareerOne; contained the details as set out in the relevant instrument; and accepted applications for over 4 weeks. The Tribunal is satisfied that the requirements of s 140GBA(3)(aa) and s 140GBA(5) are met.
It was stated in the nomination application that the applicant had not retrenched, or made redundant, any Australian citizens or permanent residents in the nominated occupation in the last 4 months, nor is there any evidence before the Tribunal that any retrenchments or redundancies have been made by the applicant in the relevant period. The Tribunal is satisfied that the requirements of s 140GBA(3)(b)(ii) and s 140GBA(4A) are inapplicable.
On the above, the Tribunal is satisfied that the applicant has been unable to successfully recruit from within the Australian labour market for the nomination position.
For these reasons, the labour market testing requirements in s 140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The business nomination application was lodged after 12 August 2018 and, therefore, the requirements of s 140GB(2)(aa) are applicable. However, as stated above, the application fee was paid by the applicant and there is nothing on the Department’s file to indicate that the nomination training contribution charge has not been paid.
For these reasons the requirements of s 140GB(2)(aa) are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Namoi Dougall
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)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 nominee 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; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2022] AATA 2179

06 June 2022

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