139 Club Limited (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning 139 Club Limited's application for approval of a nomination for a position. The core of the dispute revolved around whether the nominated occupation met the specified criteria, particularly concerning applicability conditions that excluded "limited service restaurants" but allowed for cafés or restaurants. The Tribunal was tasked with determining if the applicant, a not-for-profit café that had evolved from a "soup kitchen" for the homeless to a full-menu establishment, satisfied the requirements for nomination approval.

The Tribunal was required to assess whether the applicant met the criteria for approval of the nomination under section 140GB(2) of the Act, as well as the specific requirements outlined in regulation 2.72 of the Migration Regulations 1994. This included verifying that the nomination process was followed, that the nominator was a standard business sponsor, that the nominee was correctly identified, and that all relevant conditions, including those pertaining to existing Subclass 457 visa holders and the absence of adverse information, were satisfied. A key legal issue was the interpretation of regulation 2.72(10)(aa), which specifies that the nominated occupation must be applicable to the person identified in the nomination, and whether the applicant's operation fell within the exclusion for "limited service cafés."

The Tribunal reasoned that while the nominated occupation was subject to applicability conditions that included a "limited service café," the evidence presented demonstrated that the applicant's operation was not a limited service establishment. The Tribunal noted the café's evolution from a basic soup kitchen to a fully operational, not-for-profit café offering a diverse menu, funded by government agencies and other organisations, and providing additional services such as medical practitioners and social workers. The Tribunal concluded that the applicant's business model and operational scope meant it did not fall under the exclusion. Consequently, the Tribunal found that the applicant met all applicable criteria for the nomination to be approved.

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