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

1. 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).

2. 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.

3. 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.

4. 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.

5. On 22 July 2021, the Tribunal wrote to Ms Lim, via the agent, to invite her, pursuant to s.359(2), to provide updated and current information demonstrating that the applicant met all of the r.2.72 criteria (not only the criterion that the delegate found was not satisfied). The Tribunal provided examples of the kind of information that would assist it to assess the applicant against the r.2.72 criteria, and requested that Ms Lim provide the information to the Tribunal by 5 August 2021. The Tribunal also advised Ms Lim that if the Tribunal did not receive the requested information, or a request for an extension of time to do so, by 5 August 2021, then the applicant would lose its entitlement to have an authorised person appear on its behalf at a hearing, and the Tribunal might proceed to make its decision on the available evidence.

6. The Tribunal did not receive the requested information, or a request for an extension of time to do so, by 5 August 2021.

7. On 19 and 20 August 2021, the Tribunal received various documents from the applicant, including:

   ·ASIC current and historical extract and company summary for the applicant;

   ·ABN registration of the applicant;

   ·Department approval of the applicant as a Standard Business Sponsor (SBS) dated 9 August 2017;

   ·financial statements for the applicant for 2019/2020;

   ·Business Activity Statements (BAS) for the applicant from January 2020 to December 2020;

   ·employment agreement between the applicant and its nominee dated 15 February 2018;

   ·position description;

   ·organisational chart;

   ·payroll summary for the applicant for 2019/2020;

   ·PTE English test results for the nominee dated 12 February 2017;

   ·copy of the applicant’s menu and photographs of the business premises; and

   ·Australian government Job Outlook report for the occupation of Chef.

   ·statement in support of the genuineness of the nominated position;

   ·nominee’s PAYG summary statement for 2017/18; and

   ·statement from the applicant’s agent explaining late submission of the above information, in which she indicates that due to the lockdown, she had been working at home recently and  usually received important emails through the nominated email address ([email protected] ) to the company server email " [email protected] " . However, unexpectedly, the server mailbox did not have enough space to contain recent emails, as a result of which some of them could not be delivered to her promptly. As soon as she recognized and fixed the problem she could receive the email for the case, 1834211. The applicant’s agent apologised for any inconvenience caused.

8. On 22 September 2021, the Tribunal wrote to Ms Lim via the agent to advise that In the Tribunal’s letter dated 22 July 2021, it was stated that if she did not provide the requested information or seek an extension of time within which to do so by 5 August 2021, the applicant would lose its right under the Act to have someone appear before the Tribunal to give evidence and present arguments on its behalf. It was also stated that if the Tribunal did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information.

9. The Tribunal noted that neither the requested information, nor a request for an extension of time, had been received by 5 August 2021 (although further information was provided on 19 August 2021). The Tribunal advised that as it did not receive the requested information or a request for an extension of time by the due date, the applicant had lost its right to appear before the Tribunal to give evidence and present arguments, but the Presiding Member nevertheless advised that a decision on this case would not be made until 30 September 2021 at the earliest. The Tribunal invited Ms Lim to provide any additional information or documents that she thought wuld support the case for consideration by that date. The Tribunal noted that it would be assisted to receive (further) information relating to the following:

   • evidence of the current financial capacity and situation of the company, in

   particular addressing the effect of the COVID19 pandemic and its attendant

10. restrictions on your business (if any), including whether there is still a genuine need for the nominated position of Chef in the business;

    • clarification of the most recent organisational chart provided, which appears to

    show that there are already 3 Chefs (the nominee, who is full time, and 2 part

    time Chefs) but no Cooks;

    • clarification that the tasks of the nominated position are appropriately classified

    as those of a Chef, and not a Cook;

    • evidence that the nominee’s terms and conditions of employment (in particular,
    • his salary) are no less favourable than those that are, or would be, provided to
    • an Australian employee performing equivalent work in the same workplace at
    • the same location, as the nominee’s salary seems to be below the average
    • salary listed for a Chef on the Job Outlook website, and in recent Seek
    • advertisements for similar positions to the nominated one;
    • details of any WorkCover claims or similar (if applicable); and
    • whether your business should be classified as a limited service restaurant or
    • not – this is relevant because r.2.72(10)(aa) requires that the nominated
    • position is listed in the relevant instrument and is not excluded by any
    • occupational caveats in that instrument. The Tribunal has reviewed the

    relevant instrument, 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.

11. The Tribunal noted that the definition section of IMMI 18/004 provided that a limited service restaurant was:

    (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.

12. It further advised that Departmental policy (a copy of which was provided for their reference) provided further guidance as to what constituted a limited service restaurant, and in particular, what constituted a fast casual restaurant. It also provided guidance on the difference between the tasks and duties of Cooks and Chefs. The Tribunal acknowledged that Departmental policy was not legally binding on it, but stated that it considered it relevant to take into account when assessing whether an establishment was a limited service restaurant or not.

13. On 30 September 2021, the Tribunal received the following:

    ·     accountant’s letter dated 29 September 2021;

    ·     Busines Activity Statements (BAS) for January 2021 to June 2021;

    ·     statement dated 29 September 2021 from Director Ms Lim regarding the genuine need for the position within the applicant’s business;

    ·     organisational chart;

    ·     position description;

    ·     employment agreement between the applicant and nominee, dated 3 September 2021;

    ·     evidence of market salary rates for Chefs in Australia, various sources;

    ·     menu;

    ·     photographs of the applicant’s premises;

    ·     payslip for the nominee for September 2021; and

    ·     applicant’s ATO income statement for the nominee for 2020/2021.

14. The accountant’s letter states as follows:

    … in my capacity as accountant for [the applicant], I have reviewed the current financial position of [the applicant] and on this basis I can confirm that the company is financially viable enough to afford the hiring of a sponsored full time Chef… The company has always been run in financially stable condition and this can be supported by the fact that they have held over $100,000 balance in the company’s bank account.

    …

15. In his statement, Ms Lim provides the following information:

    As mentioned on the previous letter, we are genuinely employing Yunyoung Choi as a chef at Yeri Pty Ltd trading as Seocho-Dong. I’ll try my best to answer your questions, but please let me know if you require any further information.

    First of all, the restaurant keeps operating even though we only can give the take-away service in a lockdown situation. Although the working hours are somewhat shoreter than usual, all kitchen staff are currently working in the restaurant. I believe this lockdown will be ended soon so we cannot lose chefs. Rather, more chefs and cooks are needed to prepare busy days to come.

    We were struggling to find cooks and kitchen hands recently due to the lack of candidates who wants to work part-time in the kitchen. However, now we have a cook and kitchen hand who can support our chefs although is not enough. We hope we can hire more kitchen staff in near future. Please see the updated organisational chart enclosed with this letter.

    As can be seen on the job description which is also enclosed with this letter, Yunyoung Choi has been working with us as a qualified chef, and his duties and responsibilities are all covering the tasks which are supposed to be performed by a chef on a daily basis. He is positioned just under the head chef, and it means that he is managing all the practical tasks in the kitchen including training junior chefs and cooks, and report the entire matters to the head chef. I hope you understand that currently, due to the Covid19 situation, we have no choice but to reduce the number of kitchen staff, but when everything returns to normal, more staff will be needed.

    Based on the remuneration survey I made recently, meridian salary of chef positions was from $55,000 to $60,000 in Sydney region. Yunyoung has been paid $55,000 annually, and his salary recently has been increased to $60,000. Please see attached remuneration survey, new employment contract and recent payslips for Yunyoung Choi.

    Seocho-Dong is a fine dining restaurant providing top class Korean dishes with full table services. Our chefs are highly skilled and all our menus consist of dishes that require a lot of professional care and time. In addition to the main dishes, many side dishes and special sauces must be thoroughly prepared for each event and season. Please refer to our menu and restaurant photos attached earlier.

16. The Tribunal is satisfied that its s.359(2) letter was sent to the email address nominated by Ms Lim in the review application (being the agent, who is also the applicant’s authorised recipient for correspondence). There is no evidence that the Tribunal’s email was not delivered or was undeliverable. Rather, the applicant’s agent has confirmed that it was not seen by her until after 5 August 2021 due to the capacity of her server’s mailbox.

17. On behalf of the applicant, neither its agent nor Ms Lim responded to the Tribunal’s s.359(2) letter, or sought an extension of time to do so, by 5 August 2021. In the circumstances, s.359C applies and pursuant to s.360(3), a person representing the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890.

18. Accordingly, the Tribunal has proceeded to make its decision on the available evidence. In doing so, the Tribunal notes that Ms Lim and the applicant had the benefit of the assistance of a migration agent for the review process, that they were provided with a 14 day period in which to provide the information requested by the Tribunal (and the opportunity to request an extension of time to do so), and that they ultimately did provide further information on 19 and 20 August and 30 September 2021 addressing the nomination criteria. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral.

19. 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

20. 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

21. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

22. 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); and

    othe 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).

23. 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

24. 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.

25. 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.

26. For these reasons, the Tribunal finds that the requirements of reg 2.72(4) are met.

    Identification of the nominee

27. 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.

28. The Tribunal is satisfied that in the nomination application form, the applicant identified its nominee as Yunyoung Choi.

29. For these reasons, the Tribunal finds that the requirements of r.2.72(5) are met.

    Requirements for existing subclass 457 visa holders

30. 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).

31. The Department’s movement records indicate that the nominee does not hold, and has not previously held, a subclass 457 visa. As the nominee is not the holder of a subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.

    Information about the nominated occupation

32. Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

    ·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;

    ·if there is no such code, and the applicant is a standard business sponsor, the relevant written instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

    ·the location(s) at which the nominated occupation is to be carried out.

33. The Tribunal is satisfied that the applicant’s nomination application specified the occupation of Chef, ANZSCO code 351311, and that it specified the location at which the nominated occupation was to be carried out at Eastwood postcode 2122 in New South Wales. 

1. Accordingly, the Tribunal finds that the requirements of r.2.72(8A) are met.

   Certification relating to conduct under s 245AR(1)

2. Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.

3. The Tribunal is satisfied that the nomination application lodged by the applicant contains the above certification.

4. For these reasons, it finds that the requirements of r.2.72(8B) are met.

   No adverse information known to Immigration

5. 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.

6. 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.

7. Accordingly, the Tribunal is satisfied that the requirements of r.2.72(9) are met.

   Specified occupation

8. 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.

9. 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.

10. 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.

11. 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.

12. 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 & 8

    A caveat is in place for this occupation which excludes positions involved in mass production in a factory setting and positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, the following:

    ·            fast food or takeaway food services;

    ·            fast casual restaurants;

    ·            drinking establishments that offer only a limited food service;

    ·            limited service cafes 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 & 8

    A caveat is in place for this occupation which excludes positions involved in mass production in a factory setting and positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, the following:

    ·            fast food or takeaway food services;

    ·            fast casual restaurants;

    ·            drinking establishments that offer only a limited food service;

    ·            limited service cafes;

    ·            limited service pizza restaurants.

    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 caveats

    There 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.

    Definitions

    What 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/restaurants

    Drinking establishments that offer only a limited food service

    Nominations 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 cafe

    Nominations 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 restaurant

    Nominations 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 setting

    An 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/restaurants

    The 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 café

    Under 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 café

    Under 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. 

    …

1. The Tribunal accepts that Departmental policy is not legally binding but should be given some weight where it does not conflict with or make more restrictive the underlying legislative provision(s).

2. The information provided by the applicant includes its menu, which indicates that:

   ·there are 25 entrees available, ranging from chips to dumplings to Korean pancakes to noodle dishes and salads;

   ·there are 21 Korean main dishes, ranging from stir fries, soups, stews, and bibimbap, and including vegetarian and non-vegetarian dishes;

   ·there are 25 premium hotpot and speciality Korean dishes, including pork belly dishes and a sea snail salad;

   ·there are 13 varied and specialised Korean fried chicken dishes; and

   ·there are soft drinks and alcoholic drinks (principally beer) available.

3. The applicant also provided scanned photographs of its premises, indicating that it provides dining in facilities with a bar and has what appears to be a commercial kitchen. Publicly available information on the internet (including the Zomato website, a restaurant review aggregator) indicates that there are 2 Seocho Dong establishments in Sydney, the one which is the subject of this review in Eastwood, and another in Chatswood. The information indicates that each premises provides dining in facilities with a bar, and also provides take away food. They are listed as being open from midday to midnight, 7 days per week.

4. The most recent organisational chart provided by the applicant in September 2021 indicates that there is a Head Chef and 2 other Chefs (1 of whom is the nominee), as well as a Cook and a Kitchen Hand working within the business.

5. The nominee’s position description sets out the following tasks and responsibilities:

   …

   The Chef position is responsible for ensuring that the standard and quality of the food production and the hygiene within the section in charge is maintained at the highest level at all times. This role is very much hands-on, requiring attention to detail and a positive work attitude.

   Main Tasks:

   1. Supervise the preparation of all food

   • Ensure all food is prepared as per food preparation requirements
   • Ensure meals are produced on time, and sufficient quantities are available for the various areas
   • Maintain stock levels of all kitchen supplies
   • Prepare daily pastry and bakery requirements as per the menu
   • Be available for functions as they arise to ensure that the food is prepared and served as required

   2. Oversee and supervise junior kitchen staff

   • Ensure all junior kitchen staff are aware of their duties and what is expected of them
   • Teach new staff skills they require to perform their roles to the required standard
   • Delegate duties to kitchen staff as per the menu requirements
   • Oversee and monitor the work of kitchen staff to ensure all tasks are done as required
   • Give staff feedback on their performance to enable staff development
   • Ensure any staffing issues are resolved fairly and quickly

   3. Manage kitchen stocks

   • Ensure wastage is minimised by careful supervision of food preparation methods
   • Ensure proper hygienic storage methods are utilised to prevent food loss
   • Ensure the security of all alcoholic and non-alcoholic drink stocks
   • Oversee the ordering and control of stock levels

   4. Ensure catering staff are working safely at all times

   • Ensure staff are aware of and follow safe work practices at all times
   • Assist other staff in the cleaning of the kitchen at the end of the shift

   Ensure his/her own work station is kept clean and hygienic at all times

   Skills and Abilities Required:

   • Qualified Chef
   • Experience and success in equivalent job roles
   • Punctual, organised and trustworthy
   • Professional appearance
   • Ability to manage other people
   • Ability to motivate staff
   • Excellent communication skills
   • Attention to detail
   • Ability to resolve conflict in a constructive manner
   • Ability to solve problems and think-on-your-feet
   • Willingness to take initiative and make decisions
   • Ability to delegate tasks effectively

   General Conditions:

   • Diploma in Commercial Cookery or equivalent qualification
   • Minimum of 3 years of work experience
   • Full time position (38 hours per week)
   • AUD 60,000 per annum (plus super)

   …

6. In her most recent statement, the applicant director Ms Lim provides the following background information about the nature of the nominated position and the business within which it is located:

   As mentioned on the previous letter, we are genuinely employing Yunyoung Choi as a chef at Yeri Pty Ltd trading as Seocho-Dong. I’ll try my best to answer your questions, but please let me know if you require any further information.

   First of all, the restaurant keeps operating even though we only can give the take-away service in a lockdown situation. Although the working hours are somewhat shoreter than usual, all kitchen staff are currently working in the restaurant. I believe this lockdown will be ended soon so we cannot lose chefs. Rather, more chefs and cooks are needed to prepare busy days to come.

   We were struggling to find cooks and kitchen hands recently due to the lack of candidates who wants to work part-time in the kitchen. However, now we have a cook and kitchen hand who can support our chefs although is not enough. We hope we can hire more kitchen staff in near future. Please see the updated organisational chart enclosed with this letter.

   As can be seen on the job description which is also enclosed with this letter, Yunyoung Choi has been working with us as a qualified chef, and his duties and responsibilities are all covering the tasks which are supposed to be performed by a chef on a daily basis. He is positioned just under the head chef, and it means that he is managing all the practical tasks in the kitchen including training junior chefs and cooks, and report the entire matters to the head chef. I hope you understand that currently, due to the Covid19 situation, we have no choice but to reduce the number of kitchen staff, but when everything returns to normal, more staff will be needed.

   Based on the remuneration survey I made recently, meridian salary of chef positions was from $55,000 to $60,000 in Sydney region. Yunyoung has been paid $55,000 annually, and his salary recently has been increased to $60,000. Please see attached remuneration survey, new employment contract and recent payslips for Yunyoung Choi.

   Seocho-Dong is a fine dining restaurant providing top class Korean dishes with full table services. Our chefs are highly skilled and all our menus consist of dishes that require a lot of professional care and time. In addition to the main dishes, many side dishes and special sauces must be thoroughly prepared for each event and season. Please refer to our menu and restaurant photos attached earlier.

7. The Tribunal notes the delegate’s view that the applicant offered a ‘limited’ menu but respectfully disagrees with this, based on the most recent menu provided to the Tribunal. This offers over 20 entrees and approximately 50 main meals. The Tribunal acknowledges that some of these are simple dishes and/or variations on similar base dishes (notably Korean fried chicken with various sauces), but is satisfied that there are a substantial number of specialised and complex dishes which are cooked from scratch to order. The Tribunal accepts Ms Lim’s written evidence that in normal circumstances (that is, outside the lockdown periods arising from government restrictions relating to the COVID19 pandemic), the business operates as a dining establishment, with a licensed bar, where the majority of customers dine in, although take away food is also available and the business is also available through a number of online delivery services. It further accepts, as with many hospitality venues, it has operated as a take away restaurant during lockdown periods throughout the COVID19 pandemic. The Tribunal is satisfied from the available material that it operates daily for lunch and dinner, is licensed, takes customer bookings, offers table service and operates a commercial kitchen. The Tribunal is further satisfied that the applicant employs 3 Chefs and 1 Cook in the business, together with 1 Wait person. While there is another branch of the applicant’s business in Chatswood, the Tribunal is satisfied that it is not a franchise, but markets each premises as a dining establishment.

8. On balance, having considered the available evidence, the Tribunal considers that the applicant’s business meets most of the factors listed in the PAM3 extract above as indicating that an establishment is not a limited service or fast casual restaurant. Conversely, it does not exhibit many of the characteristics of a limited service restaurant set out in the same PAM3 extract.

9. Ultimately, the Tribunal is satisfied that the applicant does not operate a fast casual restaurant, and therefore it should not be classified as a limited service restaurant. The nominated position is therefore not excluded by the caveats set out in items 7 and 8 of IMMI 18/004.

10. Accordingly, the Tribunal finds that the requirements of reg 2.72(10)(aa) are met.

    Terms and conditions of employment

11. Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the provided to an Australian citizen or permanent resident performing equivalent work at the same location. Fair Work Act 2009 (Cth).

12. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: reg 2.57(3A). ‘Earnings’ is defined in reg 2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

13. In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: reg 2.72(10AA).

14. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028 (currently $250,000): reg 2.72(10AB).

15. The Tribunal has reviewed the most recent organisational chart provided by the applicant and is satisfied that besides the nominee, there are 2 other Chefs employed in the business. However, they are both part time employees, and both are temporary visa holders. Accordingly, the Tribunal is satisfied that there is no Australian citizen or permanent resident performing equivalent work at the same location. Therefore, the Tribunal must be satisfied that the terms and conditions of employment of the nominee are be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work at the same location.

16. The most recent contract of employment between the applicant and nominee dated 3 September 2021 provides that the nominee’s total annual earnings are $60,000 plus superannuation, and that the terms and conditions of employment are those set out in the National Employment Standards (NES) overseen by Fair Work Australia.

17. The Tribunal notes that the occupation of Chef is covered by the Restaurant Industry Award 2020 [MA000119], which provides that a grade 3 Chef (the highest classification) earns $957.60 per week (excluding overtime), which annualises to approximately $49,795.

18. The Tribunal has reviewed the following sources of market salary information:

    ·Payscale website (accessed 20 September 2021) indicating average hourly base rate for a Chef in Australia is $23.62 (annualising to approximately $46,673);

    ·Australian government Job Outlook website (accessed 20 September 2021) indicating average weekly earnings of $1,250 for a Chef in Australia (annualising to $65,000);

    ·recent advertisements listed on Seek.com.au for Chefs in Sydney in which a salary range is provided:

    oDee Why Hotel, Chef de Partie, $60,000 to $64,999 (advertised 16 September 2021);

    oThe Greenery Cronulla, Chef/Sous Chef, $55,000 to $64,999 (advertised 20 September 2021); and

    oCatering HQ, Northern Beaches, Head Chef and Sous Chef, $60,000 to $74,999 (advertised 20 September 2021).

19. The Tribunal notes that the proposed salary for the nominee is lower than the Job Outlook amount but higher than the Payscale amount, and is within the range provided for in each of the 3 recent Seek advertisements.

20. Accordingly, the Tribunal is satisfied that the nominee’s salary is in line with the salary that would be provided to an Australian citizen or permanent resident performing equivalent work at the same location. Moreover, it is satisfied that the other terms and conditions in the nominee’s contract of employment are consistent with those provided under the NES.

21. The Tribunal is therefore satisfied that the requirements of reg 2.72(10)(c) are met.

    Base rate of pay

22. Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 (currently $53,900).

23. However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: reg 2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.

24. Likewise, the requirement in reg 2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): reg 2.72(10AB). As noted above, the nominee’s annual earnings are $60,000 and thus the requirements in r.2.72(10)(cc) cannot be disregarded. However, the Tribunal is satisfied that they are greater than the TSMIT.

25. Based on its findings in the section above, the Tribunal is satisfied that the base rate of pay that would be provided to an Australian citizen or permanent resident will be greater than the TSMIT.

26. For these reasons, the Tribunal finds that the requirements of reg 2.72(10)(cc) are met.

    Certification under reg 2.72(10)(e)

27. As part of the nomination, the applicant must certify various matters in writing: reg 2.72(10)(e). These include that:

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 18/004;

    ·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant written instrument;

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant written instrument; and

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 18/004.

28. From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters which are applicable to its application.

29. For these reasons, it finds that the requirements of r.2.72(10)(e) are met.

    Position must be genuine

30. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This 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.

31. The Department’s delegate found that the nominated position was not genuine, as he concluded that the scope, size and nature of the applicant’s business did not appear to require the nominated position of Chef, given it had a limited menu and 5 other employees already. The delegate was not satisfied that the nominee would in fact perform all the tasks of a Chef (as opposed to a Cook) as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) online dictionary for a Chef.

32. As noted above, the most recent organisational structure chart indicates that there are currently 3 Chef positions within the applicant’s business, being a Head Chef and 2 other Chefs, 1 of whom is the nominee, who is employed on a full time basis, and the other being another temporary visa holder, who is employed on a part time basis. The chart indicates that the Head Chef is also a temporary visa holder employed on a part time basis. There is also a Cook, a Kitchenhand and a Wait person, all of whom are also temporary visa holders employed on a part time basis.

33. The Tribunal has set out the duties for the nominated position of Chef, which are taken from the most recent position description provided to it, at paragraph 50 above. The ANZSCO duties for a Chef are as follows:

    UNIT GROUP 3513 CHEFS

    CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.

    Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group. Cooks are included in Unit Group 3514 Cooks. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.

    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)

    
    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    oplanning menus, estimating food and labour costs, and ordering food supplies

    omonitoring quality of dishes at all stages of preparation and presentation

    odiscussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

    odemonstrating techniques and advising on cooking procedures

    opreparing and cooking food

    oexplaining and enforcing hygiene regulations

    omay select and train staff

    omay freeze and preserve foods

    
    Occupation:

    351311 Chef

    
    351311 CHEF

    Plans and organises the preparation and cooking of food in a dining or catering establishment.

    Skill Level: 2

    Specialisations:

    Chef de Partie
    Commis Chef
    Demi Chef
    Second Chef
    Sous Chef

    …

34. By way of comparison, the duties listed for a Cook in ANZSCO are as follows:

    UNIT GROUP 3514 COOKS 

    COOKS prepare, season and cook food in dining and catering establishments.

    Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants. 
    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 Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
    
    In New Zealand:
    NZQF Level 2 or 3 qualification (ANZSCO Skill Level 4)
    
    In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. 
    Tasks Include: 

    oexamining foodstuffs to ensure quality

    oregulating temperatures of ovens, grills and other cooking equipment

    opreparing and cooking food

    oseasoning food during cooking

    oportioning food, placing it on plates, and adding gravies, sauces and garnishes

    ostoring food in temperature controlled facilities

    opreparing food to meet special dietary requirements

    omay plan menus and estimate food requirements

    omay train other kitchen staff and apprentices

    
    Occupation:

    351411 Cook

    
    351411 COOK

    
    Prepares, seasons and cooks food in a dining or catering establishment.

    Skill Level: 3 Australia, 4 New Zealand

1. From the above, the Tribunal considers that although there is a reasonable overlap between the duties set out in ANZSCO for a Chef and a Cook, the main difference between the occupations is that a Chef has more responsibility for the planning and organisation of the menu, and in training and supervising other kitchen staff (including Cooks), although the Tribunal acknowledges that Cooks may also perform training.

2. In response to the Tribunal’s written queries, the applicant’s director Ms Lim has asserted that the nominee has been, is, and will be performing the duties of a Chef, and not a Cook. She notes that the nominee works closely with the Head Chef, is responsible for cooking specialised dishes, and is involved in training more junior staff (including Chefs, Cooks and Kitchenhands). Ms Lim notes that the current staff number is relatively small – largely due to the restricted operations imposed by the COVID19-related orders) but anticipates that business will soon increase with the end of the lockdown, and she states that she is actively looking for additional Chefs and Cooks.

3. The Tribunal acknowledges the delegate’s concerns, particularly as the current structure of 3 Chefs (2 of whom are part time, including the Head Chef) and 1 Cook, does raise questions of whether all of the Chef positions are correctly categorised. However, the Tribunal also notes that the 2 other Chefs (besides the nominee) hold student visas, restricting them to working 20 hours per week while their course of study is in session. Given the hours of operation of the business, the Tribunal accepts that 2 part time Chefs and 1 part time Cook would struggle to cover the work needed for a restaurant that operates for lunch and dinner 7 days per week. The Tribunal also notes that the fact that the nominee reports to the Head Chef does not demonstrate that the nominee himself is not working as a Chef, as the subset of the occupations listed in ANZSCO include Second Chef and Sous Chef, which appear to be the nominee’s role within the business.

4. The Tribunal concurs that the duties listed in the position description do align closely with those listed in ANZSCO for a Chef (and not a Cook). Although it has some concerns about whether the nominee is currently required to carry out all of the position description duties, such as training junior staff, when there is only 1 other part time Chef and part time Cook, it accepts that he would be required to do so when the applicant hires new employees in this roles, as Ms Lim plans to do. This is particularly so since he now has approximately 3 years of experience working in the nominated role within the business.

5. Therefore, having  had regard to the totality of the evidence provided, and taking into account the limited operations of the applicant throughout various lockdown periods in Sydney in 2020 and 2021, the Tribunal is satisfied that the applicant does have a genuine need for a third Chef position, and that the duties of the nominated position closely align with those listed in the ANZSCO occupational description for a Chef.

6. Given the evidence before it, including the evidence discussed above in relation to r.2.72(10)(aa), the Tribunal is satisfied that the position associated with the nominated occupation is genuine, and it finds that the requirements of r.2.72(10)(f) are met.

   Employment under contract

7. Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant written instrument. The Tribunal is satisfied that the nominated occupation of Chef is not specified as exempt from this requirement.

8. The Tribunal is further satisfied that the nominee is engaged under a written contract of employment dated 3 September 2021, which was provided to the Tribunal.

9. Accordingly, the Tribunal finds that the requirements of reg 2.72(10)(h) are met.

   Work agreements

10. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): regs 2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.

11. As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.

    Labour Market Testing

12. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

13. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in the relevant written instrument. In addition:

    ·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

    ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

14. The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.

15. The Tribunal notes that IMMI 18/219 and IMMI 20/029 (the relevant instruments currently in force) provides that the Korea - Australia Free Trade is specified for the purposes of an exemption from the labour market testing requirement. The effect of this is that, if a nominee is a citizen, permanent resident or national of the Republic of South Korea, labour market testing is not a nomination requirement.

16. The Tribunal is satisfied that the nominee Mr Yunyoung Choi, is a national of the Republic of South Korea, from the biodata information he provided to the Department and the Tribunal.

17. Given this finding, the Tribunal finds that the labour market testing requirements in s.140GBA are not applicable.

18. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

    DECISION

19. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

    Alison Mercer
    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)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.