Tulip Three Pty Limited (Migration) - [2022] AATA 2179

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)…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Tulip Three Pty Limited (Migration)

Details

AGLC: Tulip Three Pty Limited (Migration) [2022] AATA 2179
Case: [2022] AATA 2179
Decision Date: 06 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a business nomination application made by Tulip Three Pty Limited for the occupation of Café or Restaurant Manager. The applicant sought to nominate Ms Deborah Marziliano for a Subclass 482 visa. The business, Ralph’s Café on the Boardwalk, had a stated annual turnover of $1,025,598 and employed eight staff, including three chefs and a catering manager.

The primary legal issue before the Tribunal was whether Tulip Three Pty Limited met the criteria for the approval of its business nomination under the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nominated occupation corresponded to a specified occupation in the relevant legislative instrument, if the nominee possessed the requisite qualifications and experience, and if the business was a standard business sponsor. The Tribunal also considered whether there was any adverse information known to Immigration concerning the applicant or associated persons.

The Tribunal reasoned that the applicant had complied with the prescribed nomination process, including using the approved form, paying the required fees, and providing details of the nominated occupation, location, and proposed period of stay. It was satisfied that the nominated occupation of Café or Restaurant Manager (ANZSCO 141111) was applicable to the nominee and did not fall under the exclusions for limited service restaurants or factory settings. Furthermore, the Tribunal found no adverse information known to Immigration and confirmed that the applicant was a standard business sponsor.

Consequently, the Tribunal set aside the original decision not to approve the nomination and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 DougallMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 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)…

Ratio Decidendi

Legal Principle Established

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.