AL REHMAN GROUP PTY LTD (Migration)

This matter concerned an application for approval of a nomination of a position by AL REHMAN GROUP PTY LTD. The dispute arose from the decision to refuse the nomination, which was subsequently reviewed by the Tribunal. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under s.140GB(2) and s.140GBA of the Migration Act 1958 (Cth), specifically in relation to the nominated occupation of Pastrycook (ANZSCO 351112) and an associated inapplicability condition.

The primary legal issue before the Tribunal was whether the nominated position, based in a franchise operation, related to mass or standardised production, as opposed to specialist production, thereby triggering an inapplicability condition under instrument IMMI 18/004. The Tribunal also considered whether the nominated position was genuine and whether the labour market testing conducted was sufficient. The Tribunal was not bound by departmental policy but was required to pay it due regard.

The Tribunal reasoned that while a position in a franchise is not automatically excluded by the caveat, the nature of the production must be assessed. Despite the applicant's assertion that products were made from scratch and some customisation was permissible, the Tribunal found that the menu was "not very set" and that the overall operation, being a franchise of The Cheesecake Shop, pointed towards mass or standardised production. The Tribunal also noted that the director performed most of the duties himself, and the labour market testing involved only one advertisement for one month without evidence explaining why other applicants were unsuitable.

Ultimately, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved.