VN STREET FOODS PTY LTD (Migration)
[2022] AATA 1622
•7 March 2022
VN STREET FOODS PTY LTD (Migration) [2022] AATA 1622 (7 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: VN STREET FOODS PTY LTD
REPRESENTATIVE: Miss ANDIE MINH LAM (MARN: 1172818)
CASE NUMBER: 1904342
HOME AFFAIRS REFERENCE(S): BCC2018/5750398
MEMBER:Karen McNamara
DATE:7 March 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 7 March 2022 at 11:12am
CATCHWORDS
MIGRATION – nomination – Chef – no compelling evidence to support the applicant’s need for another Chef position – position associated with the occupation is not genuine – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 140GBA, 245AR
Migration Regulations 1994, rr 2.72, 2.73, 5.19CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 4 February 2019 to refuse to approve the application by VN Street Foods Pty Ltd (the applicant) for 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 20 December 2018. 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 three 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 Medium-term stream.
The delegate refused the nomination on the basis that the applicant did not satisfy s.140GBA(3)(d)(i) because the delegate considered the attempts to fill the position with a suitably qualified Australian citizen or Australian permanent resident were not genuine. Accordingly, the delegate found that the applicant did not satisfy s.140GBA, which requires that, unless exempt, the applicant undertook labour market testing (LMT) in the specified way, in the required period prior to making the nomination application.
The applicant applied to the Tribunal on 25 February 2019, for review of the delegate’s decision. The applicant provided a copy of the primary decision record with the review application.
Information provided to the Tribunal
On the 8 November 2021, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide by 22 November 2021, updated and current information that would assist to determine whether the criteria in r.2.72 of the Migration Regulations 1994 (the Regulations) and s.140GB of the Act are met at the time of its decision.
On 22 November 2021, the applicant submitted the following to the Tribunal;
·ASIC current company extract
·ABN Lookup
·Notification as a Standard Business Sponsor dated 15 May 2018
·Business Activity Statements (BAS) July 2018 to June 2020 (unsubmitted version)
·Company Tax Return 2019 and 2020 financial years (unsigned)
·Financial Statements 2019 and 2020 financial years (unsigned)
·Organisation Charts (Marrickville and Wolli Creek Restaurants)
·Statutory Declaration Mr Xuan Thang Nguyen declared 29 April 2021
·Photographs
·Online customer reviews
·Menu
·Copy of IMMI 18/048 (Specification of Occupations -Subclass 482 visa)
·Contract of employment 7 March 2019
·Restaurant Industry Award 2010
·Department approval of Subclass 482 visa to Mr Chinh Truc Hoang (nominee) 30 April 2019
·Resume Mr Chinh Truc Hoang
·VETASSESS – nominee 15 April 2019
·Department notification of approved nomination (Subclass 482 visa) for occupation of Chef 28 March 2019
·Evidence of LMT testing
On 14 January 2022, the Tribunal contacted the applicant’s representative by telephone to confirm the applicant’s intentions regarding proceeding with this application. Evidence submitted by the applicant and confirmed by Department records, indicate that there have been subsequent nominations approved since the lodgement of this application.
On 19 January 2022, the authorised representative advised the Tribunal via email that the applicant “wishes for the Tribunal to consider the evidence before it and waives his right to an oral hearing.” The representative sought a period of 14 days to make submissions prior to the Tribunal making the final decision on paper.
The Tribunal granted the representative’s request on 19 January 2022, advising that final submissions should be provided to the Tribunal by 4 February 2022.
On 4 February 2022 the representative provided to the Tribunal a written submission and evidence pertaining to labour market testing.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
In accordance with the applicant’s request, the Tribunal has resolved this matter on the papers.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
Background
The applicant owns and operates two Vietnamese restaurants located at Marrickville and Wolli Creek, Sydney.
On 20 December 2018, the applicant lodged an application under the Temporary skill shortage Subclass 482 stream for the occupation of Chef (ANZSCO 351311). The nominated guaranteed earnings are $59,390 per annum.
Evidence before the Tribunal shows that the applicant has lodged numerous nomination applications with the Department under the Temporary skill shortage Subclass 482 stream for the occupation of Chef (ANZSCO 351311) nominating Mr Chinh Truc Hoang. Department records confirm the applicant’s nomination for the occupation of Chef, nominating Mr Chinh Truc Hoang was approved on 30 April 2019 for two years and most recently approved on 16 July 2021.
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 Tribunal considers there is no single test for determining whether a nominated position is “genuine”, and the issue involves the Tribunal considering the qualitative assessment (as per Cargo), the particular facts and circumstances and the actual tasks and duties performed and described, as the nominated occupation.
In undertaking its assessment of whether the position associated with the nominated occupation is genuine, the Tribunal has considered a number of factors, including the tasks performed, the financial performance of the applicant as a business entity, the staffing structure, the primary activities of the business and the scale of those activities.
The Tribunal has carefully considered the evidence before it including that pertaining to the tasks of the position, the nature of the applicant’s commercial and operational activities, financial position and relevant to this matter, the applicant’s most recent nomination approval by the Department.
The Tribunal has afforded significant weighting to the evidence showing that the applicant has submitted numerous nomination applications with the Department, nominating the proposed occupation of Chef in relation to the nominee, for a Subclass 482 (Temporary Skill Shortage) visa. The Tribunal notes that these applications pertain to the same proposed occupation and nominee.
The applicant in submissions before the Tribunal provided evidence of the Department granting approval for nomination for the occupation of Chef on 28 March 2019. The applicant provided additional evidence showing that the nominee was granted an associated subclass 482 visa on 30 April 2019. Department records show that subsequent to the 28 March 2019 approval, the Department granted the applicant approval on 16 July 2021, for the occupation of Chef, nominating the nominee Mr Chinh Truc Hoang.
The Tribunal has carefully afforded consideration to all of the evidence before it and is mindful that the applicant since the lodgement of this application for review, submitted additional nomination applications with the Department, of which two were granted. The Tribunal considers that as the position associated with the occupation of Chef, as specified in this application for review, has subsequently been approved and filled by the nominee, there is no compelling evidence before the Tribunal to support the applicant’s need for another Chef position.
In submissions before the Tribunal including the applicant’s Statutory Declaration of 29 April 2021, the applicant attests to his need for the nominee to continue to work in the nominating business as Chef. The representative in her submission of 4 February 2022 notes that “The employed position occupied by Mr Hoang is a full-time position. Mr Hoang has all the necessary qualifications and experience to be a Head Chef….” There is no evidence before the Tribunal to support that the applicant is seeking to nominate an additional Chef position or nominee.
For the reasons noted above, the Tribunal is not able to positively find that in relation to the matter before it, the position associated with the nominated occupation is genuine.
Accordingly, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. The Tribunal therefore finds that the requirements of r.2.72(10)(a) are not met.
As both r.2.72(10)(a) and (b) must be met, the Tribunal finds that the requirements of r.2.72(10) are not met.
As the Tribunal has found the applicant does not meet r.2.72(10) it is not required to consider the rest of the requirements as set out in reg 2.72 and s140GB of the Act.
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.
Karen McNamara
MemberATTACHMENT - 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)…
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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