Yeri Pty Ltd (Migration) - [2021] AATA 4426

Yeri Pty Ltd (Migration) [2021] AATA 4426 (13 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Yeri Pty Ltd
CASE NUMBER:  1834211
HOME AFFAIRS REFERENCE(S):         BCC2018/950890
MEMBER:Alison Mercer
DATE:13 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 13 October 2021 at 4:32pm

CATCHWORDS
MIGRATION – approval of a nomination – position of Chef – genuine position – limited service restaurant – limited operations and menu – updated financial information – terms and conditions of employment no less favourable – tasks and duties of Cooks and Chefs – restricted takeaway service in a lockdown situation – exemption from the labour market testing – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 140, 245, 359, 360
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Yang v MIAC [2010] FMCA 890
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 5 November 2018 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, Yeri Pty Ltd (trading as Seocho Dong Incredible Chicken Korean Dining Pub), applied for approval of its nominated position of Chef on 28 February 2018. A nomination of an occupation for a subclass 457 visa is made under s 140GB of the Act and reg 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 r.2.72(10)(f), which requires that the position associated with the nominated occupation is genuine. The delegate found, considering the size, structure and operations of the applicant’s business, particularly its relatively limited menu and the fact that it currently already employed 5 people, that it was unlikely that the nominee would perform all of the tasks of a Chef listed for that occupation in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and that the position was not genuine. As r.2.72(10)(f) was not met, the delegate found that the applicant’s nomination application could not be approved.
The Tribunal received a review application on 21 November 2018. It was signed on behalf of the applicant by its director, Ms Yeri Lim, and was accompanied by a copy of the delegate’s decision and an authority by which Ms Lim appointed a registered migration agent, Mr Hyunglak Park, as the applicant’s representative and authorised recipient for correspondence.
On 22…

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 Yeri Pty Ltd (Migration)

Details

AGLC: Yeri Pty Ltd (Migration) [2021] AATA 4426
Case: [2021] AATA 4426
Decision Date: 13 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning Yeri Pty Ltd's nomination for a Chef position. The core dispute revolved around whether the nominated position met the criteria for approval under migration regulations, specifically concerning the nature of the restaurant and the tasks involved. The Tribunal was tasked with determining if the nomination complied with all applicable legislative requirements.

The legal issues before the Tribunal included whether the nominated position of Chef was genuine, whether the restaurant constituted a "limited service restaurant" as defined by relevant instruments, and if the tasks associated with the role aligned with the duties of a Chef rather than a Cook. Additionally, the Tribunal considered whether the business's operations, particularly during a lockdown period which restricted takeaway services, impacted the assessment of the nominated position's genuineness and compliance with caveats in the relevant instrument. The Tribunal also examined the exemption from labour market testing and the overall compliance with the prescribed nomination process.

The Tribunal reasoned that the nominated position of Chef was genuine and that the restaurant, Seocho Dong Incredible Chicken Korean Dining Pub, was not a limited service restaurant as defined by the policy guidelines. It found that the business was not solely a fast food or takeaway service, nor a drinking establishment with limited food offerings, a limited service café, or a limited service pizza restaurant. The Tribunal concluded that the restaurant did not fit the definition of a "fast casual restaurant" and that the Chef's duties involved menu planning, quality control, and advising on cooking procedures, distinguishing it from the role of a Cook. The Tribunal also noted that the restricted takeaway service during lockdown did not negate the genuineness of the position.

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

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Background

Background to the litigation

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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 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, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, 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 is satisfied, from having reviewed the documents on the Department’s file, that:othe applicant nominated an occupation under s.140GB(1)(b) (being Chef) and thus meets r.2.73(1A)(a);othe applicant identified the nominee, Mr Yunyoung Choi, the proposed applicant for a subclass 457 visa, as the person who would work in that occupation, and thus meets r.2.73(1A)(b);othe nomination was made using the approved form and fee, and thus meets r.2.73(2),(3), (5) and (9);othe applicant identified the nominee, Mr Yunyoung Choi, in the nomination, thus meeting r.2.73(4)/(4A) and (5); andothe nomination included the location at which the occupation would be carried out, and the 6 digit ANZSCO code for that occupation (ANZSCO code 351311), thus meeting r.2.72(4). The Tribunal is therefore satisfied that the requirements of r.2.72(3) are met.Nominator is a standard business sponsor or party to a work agreement Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor (SBS) or a party to a work agreement other than a Minister. The Tribunal is satisfied from the material provided that the applicant was approved as an SBS by the Department on 9 August 2017, and that this does not cease until 9 August 2022. For these reasons, the Tribunal finds that the requirements of reg 2.72(4) are met.Identification of the nominee Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. The Tribunal is satisfied that in the nomination application form, the applicant identified its nominee as Yunyoung Choi. For these reasons, the Tribunal finds that the requirements of r.2.72(5) are met.Requirements for existing subclass 457 visa holders The criteria for approval of a nomination contain several requirements if a subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:·the applicant must list on the nomination each person granted a subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);·the subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: reg 2.72(6)(b);·the applicant must provide a written undertaking if the existing subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: reg 2.72(7A); and·if the subclass 457 visa holder met cl 457.223(6), he or she must either: continue to meet cl 457.223(6); or be an exempt applicant under cl 457.223(4); or have achieved in a single attempt a test score specified in the relevant written instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: reg 2.72(10)(g).

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.Alison MercerMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 Criteria for approval of nomination — Subclass 457…(1)This regulation applies to a person who is:(a)is any of the following:(i) a standard business sponsor;(ii) a person who has applied to be a standard business sponsor;(iii) a party to a work agreement (other than a Minister);(iv) a party to negotiations to a work agreement (other than a Minister); and(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.

Ratio Decidendi

Legal Principle Established

For these reasons, it finds that the requirements of r.2.72(8B) are met.No adverse information known to Immigration Regulation 2.72(9) 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 reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it. Accordingly, the Tribunal is satisfied that the requirements of r.2.72(9) are met.Specified occupation Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 18/004, and the occupation must be applicable to the person identified in the nomination in accordance with the 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: reg 2.72(10)(b). The Tribunal is satisfied that the nomination of the occupation of Chef does not require the support of a specified organisation and thus r.2.72(10)(b) does not apply in this case. The Tribunal has reviewed IMMI 18/004 and is satisfied that it includes the occupation of Chef (ANZSCO code 351311), but that it is subject to the caveats contained in notes 7 and 8 to that instrument, which provide that a Chef position cannot be approved if:·Note 7: The position is involved in mass production in a factory setting; or ·Note 8: The position is in a limited service restaurant. The definition section of IMMI 18/004 provides that a limited service restaurant is:(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. From the information before it, the Tribunal is satisfied that the nominated position is not involved in mass production in a factory setting, as it is based in an establishment trading as Seocho Dong Incredible Chicken Korean Dining Pub, based in suburban Sydney. The issue is therefore whether it is a limited service restaurant. The Tribunal is satisfied from the information provided by the applicant that its business is not solely a fast food or takeaway food service, nor is it a drinking establishment offering only a limited food service, a limited service café or a limited service pizza restaurant. The question is whether it can or should be classified as a fast casual restaurant. That term is not defined in the Act or Regulations but the Department’s policy guidelines (as set out in its Procedures Advice Manual, or PAM3, most recent applicable version prior to cessation of subclass 457 visa and associated nomination program on 18 March 2018) provides the following advice:…Chefs (ANZSCO 351311) – Conditions 7 & 8A 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 including, but not limited to, coffee shops or mall cafes;· limited service pizza restaurants.For further advice regarding how the above terms are defined, refer to Section 4.8.1.4 Additional advice on hospitality positions and caveats.This caveat is designed to ensure that in the context of this occupation, employer sponsored visa skilled programs continue to be used for skill level 2 chef positions only – that is, leadership positions in a dining establishment that involve managerial tasks such as planning menus, monitoring the quality of dishes, preparing and cooking food, and advising on cooking procedures. It is not appropriate for use by individuals who will actually be undertaking the role of a Cook (ANZSCO 351411) – see guidance provided below on Cooks (ANZSCO 351411).Note: Apprentice Chefs are excluded from this unit group in ANZSCO and are included in the Cook unit group.When determining whether the caveat applies, officers should first confirm that the nominated position is not located in a limited service restaurant – using the guidelines provided at Section 4.8.1.4 Additional advice on hospitality positions and caveats.…Cooks (ANZSCO 351411) – Conditions 7 & 8A 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.For further advice regarding how the above terms are defined, refer to Section 4.8.1.4 Additional advice on hospitality positions and caveats.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.It is not appropriate for use by individuals who will actually be undertaking the role of a Fast Food Cooks (ANZSCO 851111), Food Trades Assistants NEC (ANZSCO 851299) and Kitchenhands (ANZSCO 851311), or for positions that can be performed with on-the-job training, or without the skills, qualifications or employment background specified in the ANZSCO dictionary.Cooks, unlike Chefs, are less likely to operate independently in planning menus and sourcing produce, and are expected to spend the majority of their time preparing food on a daily basis.If the nominated position is not determined to be in a limited service restaurant or be involved in mass production in a factory setting, further assessment may be warranted if the officer has concerns that a significant amount of the nominee’s time will be spent on routine support tasks in a food service environment (e.g. preparing ingredients, cleaning equipment, delivering food, taking orders, packing food and beverage trays, heating food items), rather than preparing and cooking food in a dining or catering establishment.…4.8.1.4. Additional advice on hospitality positions and caveatsThere are caveats in place for the occupations of Café or Restaurant Manager, Cook and Chef, which exclude the occupation from the subclass 457 programs where the position is based in a limited service restaurant.A limited service restaurant, as outlined in the instrument, 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 including, but not limited to, coffee shops or mall cafes;· limited service pizza restaurants.Cook and chef positions are also excluded where they are involved in mass production in a factory setting.This section explains how the above terms are defined under policy for the purposes of these caveats.DefinitionsWhat is a fast food or takeaway service?Under policy, fast food or take away food is defined as food that is quick to cook or is already cooked and as a result can be served as a quick meal or to be taken away – i.e. “a meal to go”.Such food is to be distinguished from a restaurant or café where people sit and eat meals that are cooked and served on the premises, pay on completion of the meal and with the service provided being an important factor, as well as the food.Examples of eating establishments considered under policy to provide fast food or takeaway services may include, but are not limited to, fast food chains, fish and chips shops, hamburger shops, kebab shops, takeaway sushi shops, Asian noodle take away shops and fried chicken shops.Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.What is a fast casual restaurant?Fast casual restaurants, sometimes also referred to as fast casual dining outlets, are similar to fast food outlets except the quality of the food and prices of the menu are somewhat higher and they may have a liquor licence.These restaurants are designed to offer the quality of established restaurants with the informality of fast food stores and speedier service than a full service restaurant. Typically, these outlets:· do not provide full table service, with customers ordering their food at a counter even if it is delivered to the table;· operate in chains or as franchises and are heavily advertised;· offer streamlined menus similar to fast food establishments;· offer speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;· do not generally employ chefs – with some menu items still mass-produced, even if they are made from better quality and fresh ingredients,· cater for special dietary needs unlike fast food establishments; and· do not have a drive through facility.Examples of eating establishments that are considered to be fast casual restaurants may include, but are not limited to fast casual dining franchises which focus on serving a ‘gourmet’ or ‘organic’ version of fast food (e.g. burgers, fried chicken, fish and chips, sandwiches) or food from a particular country (e.g. Mexican, Greek, Italian or Japanese).Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurantsDrinking establishments that offer only a limited food serviceNominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a drinking establishment, such as a pub, a bar, a beer hall or an izakaya.In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant – with some pubs even marketing themselves as ‘gastropubs’.Employer sponsored skilled visa programs are not considered appropriate to fill positions in bars/pubs where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.Under policy, a drinking establishment is considered to have a limited food service menu where it only provides snacks (e.g. olives, dips, chips, pickles), or a very limited range of food that involves limited preparation (e.g. toasties, tacos, simple pizza or standard hamburgers).Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.Limited service cafes including a coffee shop or mall cafeNominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a café. In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve (e.g. coffee, tea, non-alcoholic drinks). In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.Employer sponsored skilled visa programs are not considered appropriate to fill positions in cafes where only a limited food service is provided, such as coffee shops or mall cafes – with such positions generally lesser skilled and considered able to be sourced from the local labour market.Under policy, factors adding weight to a finding that an eating establishment is a limited service café include that the café:· is located in a mall;· is primarily a coffee shop (that is, an establishment that focuses on serving hot beverages such as tea or coffee) ;· have a limited food menu that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).By contrast, full service cafes are likely to have a comprehensive food menu and develop most dishes from scratch in a full commercial kitchen.Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurant below.Limited service pizza restaurantNominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a pizza restaurant. In some cases, these establishments will provide mainly a takeway pizza service with limited other menu items and/or only limited table services. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.Employer sponsored skilled visa programmes are not considered appropriate to fill positions in pizza restaurants where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.Under policy, factors adding weight to a finding that an eating establishment is a limited service pizza restaurant include that the restaurant:· does not serve non-pizza related items;· has minimal onsite seating, with takeway the main focus of the business;· clients pay at the counter;· clients eat pizza from pizza boxes even if on the premises.By contrast, full service pizza restaurants are likely to have a comprehensive food menu and develop most dishes from scratch in a full commercial kitchen.Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants.What is mass production in a factory settingAn additional caveat applies to the occupations of cook and chef which excludes positions from use under where they involve mass production in a factory setting – with such positions generally lesser skilled and considered able to be sourced from the local labour market.Cooks are expected to be involved in preparing and cooking food from scratch rather than, for example, just heating pre-prepared meals, or making basic food stuffs in a factory setting.Under policy, mass production refers to the making of products using assembly line techniques, with workers working on an individual step of the production process. Such production techniques usually also involve the use of tools, machinery and other equipment, usually automated.If a nominated position for a Cook or a Chef is based in a factory setting, officers will need to check whether or not this additional caveat applies.Distinguishing between full service and limited service cafés/restaurantsThe sections below are designed to assist officers to determine whether the nominee will be based in a restaurant or café, or in one of the locations that is specifically excluded via a caveat on the occupation listed in the relevant legislative instrument.Officers will need to make an assessment as to the location of the nominated position, based on the individual circumstances of the case and taking into account all the material available in relation to how the business actually operates. The factors outlined below are considered critical in terms of distinguishing between full service and limited service café/restaurants.Note:· The key factors are the way in which the food is ordered, served and consumed, not the quality of the food.· If a food service business operates through a chain or franchise arrangement, it is possible that some outlets will be fast food or takeaway businesses while others are cafes or restaurants. It is therefore important for officers to assess this issue on a case by case basis. In this situation, officers also need to ensure that any supporting evidence provided, relates to the specific outlet that is the subject of the nomination, rather than another premises in the chain.Factors supporting classification as a restaurant or caféUnder policy, factors that may be relevant to an assessment that the position is based in a café or restaurant include:· how the business is marketed to the public· the business is mainly engaged in providing food and beverage serving services for consumption on the premises, even if take away services are available· meals are made on-site from raw ingredients, portion size may vary depending on the cut/produce size available, involving substantial preparation (for example, peeling, chopping, de-boning, grating), seasoning and cooking - using a range of equipment and techniques depending on the nature and size of the produce that is being prepared· a comprehensive menu is available which incorporates a broader range of ingredients that are delivered fresh to the premises· table service is provided by a waiter/waitress – that is customers are seated at restaurant/café tables and provided with assistance while seated as required (i.e. provided with menus, asked for order, provided with additional items/assistance where required and provided with bill) · customers pay after eating· the business holds a liquor licence and has a comprehensive selection of alcoholic beverages available via table service· the menu caters for special dietary requirements and varies from time to time depending on availability of produce, and seasoning· if the menu is limited, there is a focus on organic or specialty ingredients that are prepared onsite or ‘gourmet products’, and/or prices are higher than would be expected at a takeaway establishment· the size of portions may also vary from time to time given the human element involved in the preparation and cooking of the items· the business has a full commercial kitchen and significant food storage facilities for fresh ingredients· the business has had their performance recognised via restaurant industry awards· employment at the business has been accepted by TRA as skilled work experience, or by a recognised training institution as sufficient to support study in a Certificate III in Commercial Cookery· where a chain, different outlets are designed differently to reflect the local customer base and outlets are largely owned by the company rather than franchisees.Factors supporting classification not as a restaurant or caféUnder policy, factors that may be relevant to an assessment that the position is not a restaurant or café (i.e. that it is based in a fast food or take away service, or a fast casual restaurant) include that:· the business does not offer full table service· the business is a well-known fast food or fast causal restaurant chain· the business markets itself as a fast food restaurant or a fast casual restaurant, within significant levels of advertising· the business is primarily a coffee shop· operate a franchise or restaurant chain, where different outlets are largely identical in design· the business offers speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;· the business mainly engages in providing food services ready to be taken away for immediate consumption with only limited onsite seating provided (if any)· the business offers streamlined or limited menus, with food prepared according to a standardised format or that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).· the business does not generally employ chefs – with food still mass-produced even if better quality and fresh ingredients are used than is typical in a fast food context, with special dietary needs often catered for· the business does not have a full commercial kitchen – and only has equipment for heating/final preparation of food· the business is located in a food hall and food courts that consists of fast food and take away services, as opposed to award winning/high profile restaurants that can now be co-located in some shopping malls· customers are required to order at a counter and pay before eating· limited seating and/or only communal tables shared with other business is provided· meals are served in packaged form and/or there is a focus on ‘street food’ (i.e. handheld foods)· meals are served in disposable containers (although some outlets may provide cutlery and crockery for customers dining in the establishment)· reservations are not required or provided for· food is distributed from a central location· food is apportioned into predetermined quantities and sizes, seasoned to a fixed standard and delivered, pre-packaged, with preparation on-site being limited to thawing, heating and/or basic cooking (e.g. frying or grilling)· if heating or cooking is required, cooking times for the items are usually pre-arranged for a set duration, as the time it takes to cook through can be predetermined given the control over portion size that is packaged prior to delivery to each venue· employees of the business are covered by the Fast Food Industry Award· the business has had their performance recognised via fast food industry awards.Officers are reminded that the above considerations are for guidance only and are not intended to be an exhaustive list. Officers must consider, on an individual basis, all circumstances of which they are aware, or should be aware, and which are relevant to the determination, and must not apply these factors inflexibly. …