TURKISH KEBAB AND PIZZA SHOP PTY LTD (Migration)

TURKISH KEBAB AND PIZZA SHOP PTY LTD (Migration) [2018] AATA 5880 (10 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  TURKISH KEBAB AND PIZZA SHOP PTY LTD
CASE NUMBER:  1614704
DIBP REFERENCE(S):  BCC2016/1300776
MEMBER:Alan McMurran
DATE:10 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 10 August 2018 at 11:29am

CATCHWORDS
MIGRATION – nomination refusal– standard business sponsor – Café or Restaurant Manager – nominated occupation doesn’t correspond to a specified occupation –nominator is conducting a business as a limited service restaurant – decision under review affirmed

LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, rr 2.72, 2.73
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 August 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 29 March 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 2.72(10) (aa) because the nominated occupation does not correspond to an occupation specified in the relevant instrument in writing. The nominated occupation of Café or Restaurant Manager (ANZSCO 141111) in the relevant instrument at the time of the delegate’s decision[1], excluded positions in a limited service restaurant which specialises in fast food or takeaway food services.
[1] IMMI 16/059
The nominee for the position described as Café or Restaurant Manager is identified as Mr. Sikander Hayat. The nominee is a citizen of Pakistan.
The applicant appeared before the Tribunal on 3 August 2018 by its director, Mr Hayat, who is also the nominee, to give evidence and present arguments. The hearing was a combined hearing with the applicant (nominator) and the visa applicant (the nominee). The Tribunal received oral evidence from the nominee, Mr Hayat. The Tribunal was satisfied that the nominee was duly authorised to give evidence and represent the nominator, as well as himself.
The Tribunal explained the purpose of the reviews and informed the nominee that in order for him to succeed, the nomination would have to be approved. The nominee appeared to understand the process. The nominee has held a 457 visa previously, for a period of approximately 4 years. The nominee did not seek the assistance of an interpreter and the Tribunal formed the view that when giving evidence, the nominee understood the conversation and was able to converse freely in English. No questions or concerns were raised about any translation during the hearing by the nominee, and the Tribunal provided both parties and the representative with an opportunity to ask any questions they considered relevant.
The parties were represented in relation to the review by a registered migration agent who appeared for both the nominator and the nominee.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Background
The nominator is a company duly incorporated under the Corporations Act and carries on business as Turkish Kebab and Pizza Shop. The nominator is a standard business sponsor under a standard business sponsorship approval, obtained on 12 April 2018 and expiring on 12 April 2023.
The nominator’s business is located in the suburb of Belconnen, in Canberra, and specialises in the sale of halal Turkish food. The premises include provision for eat in or takeaway food and also some catering and delivery services. The Tribunal has set out below the evidence in relation to the operation of the business, its size and style, noting that it describes itself as “operating as a casual cafe style restaurant serving Turkish foods”.[2] The business has apparently been operating since on or about 2005 under the previous owner, and the nominee has been working in the premises since on or about 2009.
[2] T file at f 53
The nominee explained at the hearing that the previous owner, Ismail Iskie, operated the business as a sole trader. The nominee began working for the previous owner not long after he came to Australia on a student visa in 2008. The nominee said he was studying in Canberra, and “knocked on doors” looking for work. Mr Iskie employed him although he had no experience in the food industry.
The nominee described his background for the Tribunal, stating that he had obtained a degree in Commerce in Pakistan from the University of Punjab. On coming to Australia, he had studied business management at the Canberra Institute of Technology. The nominee said that his family in Pakistan conducted a rice growing business, and that he had no prior experience in the restaurant industry.
In 2011, the nominee purchased the business from the previous owner, who continued to work in the business until the nominee had paid the agreed purchase price of $60,000. The nominee said he borrowed money from his family which required an upfront payment of $20,000, and then quarterly payments for the balance over a 12 month period. On the advice of his accountant, the nominee incorporated the applicant in 2013.
The nominee said the previous owner trained him, and he has been running the business with his wife since about 2011. His wife assists in in the management and operation of the restaurant. The nominee and his wife were both on student visas, while the nominee studied business Management at the Canberra Institute of Technology.
The nominee retained the casual staff who had been working for the previous owner. The nominee said he was taught to cook by Mr Iskie, as well as how to fill catering orders, manage food ordering and staff. He said that in addition to himself and the previous owner, and his wife, there was a cook and 2 or 3 waitresses (both of whom were Australians). The staff has changed over the years since the nominee took over the management.
The nominee described the current staff recruited since 2011. He employed another student from Pakistan whom he knew before coming to Australia, Hannan Bashir, who is on a bridging visa and who is now the cook, and his wife Rahmat, and Hassam Khan who also helps with the cooking. He has employed another person named Towas, “on the cooking side” and Naja (an Australian citizen), who is an older person who makes the entrees which are pre-prepared and placed in the fridge. The nominee has employed a part-time customer service person named Ghulam (who is on a student Visa), and Sajid (also on a student visa) who is a delivery person. The nominee said they have another Australian citizen named Jenny who is helping serving tables, and Sajid’s wife, who is also a casual employee and a student.
The application was made to the Department on 29 March 2016 and decided by the delegate on 26 August 2016. The application to the Tribunal was filed on 13 September 2016 and constituted to a member for review on 4 July 2018. The Tribunal wrote to the nominator on 14 February 2018 requesting updated and current information. The nominator’s representative responded by letter on 27 February 2018, with a number of enclosures. In addition, the applicant provided information with the application.
In considering this matter on review, the Tribunal has had regard to information from a number of sources, both the Tribunal’s file, and the Department’s file[3] together with the Tribunal file for the nominee[4] and the Department’s file for the nominee[5], the most recent submissions from the representative and the oral evidence at hearing.
[3] DIBP BCC 2016/1300776
[4] T File 1619276
[5] DIBP BCC 2016/478013
ANZSCO
In nomination applications, the nominator is required to identify an occupation specified by the Minister in a legislative Instrument in writing, and which is characterised by certain specific tasks and duties.
Those tasks and duties are not prescribed, although the guide provided by ANZSCO[6] is regarded as reliable and the best source of information to help profile the occupation, its tasks, duties and responsibilities. The Tribunal has regard to the guide when considering the nominated occupation.
[6] Australian and New Zealand Standard Classification of Occupations
ANZSCO describes the occupation as follows:
CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
Tasks Include:
oplanning menus in consultation with Chefs
oplanning and organising special functions
oarranging the purchasing and pricing of goods according to budget
omaintaining records of stock levels and financial transactions
oensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
oconferring with customers to assess their satisfaction with meals and service
oselecting, training and supervising waiting and kitchen staff
omay take reservations, greet guests and assist in taking orders
The current relevant legislative Instrument[7] at the time of this decision is in similar terms to the Instrument at the time of application[8], and contains a caveat in Part 2, for the Short-term Skilled Occupation List, where the occupation of café and restaurant manager appears, and it describes positions in a limited service restaurant as “inapplicable”.[9]
[7] 17/060
[8] IMMI 16/059
[9] See Item 8, Section 8, of IMMI 17/060 at page16 of the Instrument, for the occupation of café or restaurant manager
That means that a cafe and restaurant manager of a limited service restaurant is not included in an occupation with a corresponding six digit code specified by the Minister in an Instrument in writing.
The current Instrument refers to a limited service restaurant[10] in the definitions as follows:
limited service restaurant 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.
[10] Migration (IMMI 17/060: Specification of Occupations – Subclass 457 Visa) Instrument 2017, Part 1- Preliminary, Section 4 , p1-2
It is clear from the definition that a restaurant that conducts a fast food or takeaway food service and is a fast casual restaurant falls within the excluded category of restaurants in (a) and (b) above. For the purposes of this application, the categories in (c) and (d) above do not apply, as the applicant is not a drinking establishment or a coffee shop or mall café.
The Factual Issue
The issue in the present case is whether having regard to the facts and circumstances as to the business and operation of the restaurant, the nomination might properly be described as a nomination for a position in a limited service restaurant.
Procedural guidelines set out that if the sponsoring business predominantly provides takeaway or fast food services in a fast casual restaurant, it is likely to be properly described as a limited service restaurant and the nominated occupation ( as the manager of such an establishment) will be excluded by the caveat in the legislative Instrument.
Restaurants can be described and characterised according to a number of criteria, such as pricing, size, formality and menu, all of which factors may assist in determining whether the epithet, and caveat limitation of a limited service restaurant applies.
These were all factors discussed with the nominator at the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal must determine and make a finding in the present case whether the applicant meets the criteria for approval of the nomination.
The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB (2).
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case at the time of the review decision, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the Instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the current Instrument.
In certain circumstances this Instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72 (10)(b). That provision is not applicable in this instance.
IMMI 17/060 was made on 28 June 2017 and commenced on 1 July 2017. It is expressed to apply to all nominations made before that date which are not finally determined before 1 July 2017. The Instrument was repealed by IMMI 18/004 which applies to applications made on or after 17 January 2018, but which specifically provides that IMMI 17/060 continues to apply where the nomination was made and not finally determined prior to 17 January 2018. The application in the present case was made on 29 March 2016.
The Instrument (17/060) continues the definition in the earlier Instrument of a limited service restaurant, in identical terms and using the same five prescribed criteria.[11]
[11] limited service restaurant 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.
Mr Hayat’s Evidence
The Tribunal explained to the nominee at the hearing that if the nomination were not successful, then his application for the visa based on the nomination must also fail. Mr. Hayat in giving his evidence appreciated that it was on behalf of the nomination application firstly, as well is in support of his own application for the visa.
The nominee was asked a number of questions about the operation of the business and the clientele.
The nominee conceded that the business operation was a small restaurant. It is not licensed and specialises in a Turkish menu. He said the restaurant will cater for small functions such as birthday parties and small family gatherings of up to 10 people. He said the restaurant also provides catering for nearby businesses and office workers during the week.
The nominee described the business in some detail. He explained who the current staff were and their specific roles. His wife, Rahmat, helps him with customer service. A casual employee and student, Hassam Khan, assists with cooking and works approximately 16 hours per week. Another student who the nominee knew from Pakistan, Hannan Bashir, helps by “working in the shop”. He is not specifically trained in any occupation in the restaurant industry. There are two casual Australian waitresses (one named Jenny) who work approximately 20 to 30 hours per week part-time. He has employed another part-time cook, Towas, who commenced in 2016 and Naja who makes the entrees. Both are Australian citizens. He has employed another student to assist with customer service, Ghulam, and a delivery person, Sajid. Both these persons are on student visas and work casually. Sajid’s wife works part-time in the restaurant and is also a student.
The restaurant is open 7 days a week from 11 AM until approximately 9 PM. There are approximately 8 to 10 tables with seating for 20 to 30 people. The seating is all inside, although there are sometimes 1 or 2 tables on the footpath.
During the week, office workers from nearby will come in for lunch and order mostly takeaway, although a few may eat at the tables. Usually they order and pay at the counter, unless they are staying to eat and may pay at the end. The tables are not pre-set or dressed for lunch.
The evenings tend to be the busier time for the restaurant. Sometimes there may be between 15 and 20 patrons who have either pre-booked or are dining casually. Friday and Saturday nights are usually “full” with up to 25 people.
The nominee stated that he has noticed in the last 12 to 18 months of operation that the majority of people are now ordering takeaway. There are another 2 or 3 outlets opened nearby which are predominantly takeaway and competition is fierce. He said there is an ongoing trend for people to order their food online and to have it delivered. Orders are placed using an online app with a fixed menu, such as Menu Log, Eat Now, Uber Eats and Deliveroo. These have proved to be very popular and the restaurant has produced its own online app called Eat Happy for direct ordering with customers. An order is placed and received by the restaurant on an iPad, cooked and packaged and then delivered using a casual delivery driver. Payments are made over the phone or online.
The restaurant does not offer a full table service, although staff will wait on tables if customers are present, including providing them with cutlery and serviettes. This is more predominant for the Friday and Saturday evening business. The restaurant has a small kitchen with stove and benches for chopping, dishwasher and a storage area. Cooking is predominantly grilling and frying. The restaurant has a refrigeration room for storing pre-prepared food, meat which has already been cooked, and prepared curries.
In discussion with the Tribunal, the nominee stated that the restaurant is now placing its focus on takeaway, using its online app and providing the delivery service. He said this is the future for the current generation of diners, and that the restaurant has to adapt to what the customers want. He said they have maintained their dining service at the restaurant, but which is now contracting and has become a smaller part of their business.
At the end of the discussion with the nominee, the Tribunal asked if the representative or the nominee wished to make any further comment. The representative stated that in his view the nominator was clearly operating a restaurant, not primarily engaged in takeaway and with an extensive menu. He argued the restaurant was not “small”, as it provided meals and sometimes banquets. He emphasised that there are customers who do eat in, sit at the tables and pay at the end. The Tribunal put to the nominee (and the representative) that the restaurant might still be described as offering a “limited service”. The representative submitted that it was “a grey area still” and that you have to consider all the circumstances and in the context of the particular restaurant in order to make a determination.
Is the nominator conducting a business as a limited service restaurant?
The Tribunal has paid careful regard to the discussion with the nominee at the hearing and the information provided. That includes the photographs of the operation of the business which is described in its advertising and promotion as “Turkish Kebab and Pizza Shop”.
Having considered the evidence, the Tribunal does not accept the submission that the restaurant is other than a small restaurant. The Tribunal finds that the restaurant is primarily set up for the provision of takeaway and online food service.

Size alone, meaning the number of customers for whom the restaurant can cater, is not on its own determinative. Reference in the Instrument to “limited service” does not mean in this Tribunal’s view a reference only to size or patronage. The reference however clearly excludes “fast food” or “takeaway” service and in a “fast casual” restaurant environment.
The nominee himself concedes the focus of the business is now on takeaway ordering, using its online service. Having regard to the photographs of the establishment, and the nature of the dining experience offered, the Tribunal finds the nominator conducts primarily its business in a “fast casual” environment, even preferring to call itself a “shop” rather than a restaurant.
Although these terms are not defined, other than generically, it is evident that workers from nearby businesses ordering their lunch for takeaway are doing so on the basis the service is “fast”. They are “shopping” for fast food (to use the nominator’s preferred description). Furthermore, diners attending the restaurant, even at its busy times on Friday and Saturday evenings, are doing so in a casual environment. Again, the term is not defined other than generically, but which means dining without formality of style or manner, and not dressing for the purpose.
The Tribunal finds that fast casual dining and takeaway service are excluded from the nominated occupation, in accordance with the prescription set out in the Instrument.
The Tribunal finds that the hallmarks for so describing a restaurant are clearly the focus on the takeaway service itself, the nature of a static menu specialising in only Turkish food, the speed with which service and ordering are conducted, the limited seating available at the premises, and the casual nature of the dining experience.
These are all factors which lead the Tribunal to conclude that the nominator in this circumstance and based on the information provided and set out above is conducting the business of a fast casual restaurant, offering a predominantly takeaway food service. As such, the Tribunal is satisfied that the nomination falls within the excluded occupation in the Instrument, because the business conducted is primarily a limited service restaurant.
The Tribunal finds therefore on the information before it that the nominator is conducting a business as a limited service restaurant, within that description as included in the Instrument and set out above.
For these reasons the requirements of r.2.72 (10)(aa) are not met.
The Tribunal further finds that the requirements of r.2.72 (10)(b) are not applicable.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved.
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Alan McMurran
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2018] AATA 5880

10 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness