1500297 (Migration)

This matter concerned an application for approval of a nominated position under the Direct Entry stream of the Migration Regulations 1994. The applicant, trading as Tosung Charcoal BBQ in Canberra, nominated a Café or Restaurant Manager position. The Tribunal was required to determine whether the applicant met all the requirements for approval of this nomination as set out in regulation 5.19(4).

The legal issues before the Tribunal were whether the nominated position genuinely reflected the tasks of a Café or Restaurant Manager as defined by ANZSCO, and whether the nominee possessed the requisite skills and experience for the role. Specifically, the Tribunal considered whether the business required a second Café or Restaurant Manager when one was already employed, and whether the nominee's qualifications and experience aligned with the ANZSCO description, which includes tasks such as planning menus in consultation with chefs and selecting, training, and supervising staff. The Tribunal also had regard to the assessment from the Regional Certifying Body, which noted concerns about the nominee's qualifications and experience despite finding a genuine need for the position.

The Tribunal reasoned that for the nomination to be approved, all the requirements of regulation 5.19(4) must be met. It noted that the ANZSCO definition for a Café or Restaurant Manager includes tasks such as "plan menus in consultation with Chefs" and "select, train and supervise staff." The Tribunal found that the business did not employ a chef, and the provided information did not demonstrate that the nominee would select or train staff. Furthermore, the existence of a current full-time Café or Restaurant Manager and the lack of explanation for the need for a second position raised concerns. The Regional Certifying Body's assessment also highlighted doubts regarding the nominee's qualifications and experience.

The Tribunal affirmed the decision under review to refuse the nomination, concluding that the applicant had not satisfied the requirements of regulation 5.19(4).