ASAC LK PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision by the Department of Home Affairs not to approve a nominated position for a Chef under the medium-term stream of the Temporary Skill Shortage (TSS) visa program. The applicant, ASAC LK PTY LTD, sought approval of the nominated position for a Chef (ANZSCO 351311).

The Tribunal was required to determine whether the nominated occupation and position met the relevant criteria under the Migration Regulations 1994. Specifically, the Tribunal considered whether the nominated occupation of Chef was specified in the relevant legislative instrument (LIN 19/048) and whether it was applicable to the nominee, given the instrument's inapplicability conditions. The Tribunal also had to assess whether the nominated position was genuine and full-time, as required by regulation 2.72(10).

The Tribunal reasoned that the nominated occupation of Chef was subject to inapplicability conditions, including that the position must not be in a limited service restaurant. Due to a paucity of contemporary evidence regarding the applicant's business operations, particularly as the applicant failed to respond to the Tribunal's invitation for further information, the Tribunal was not satisfied that the nominated position was based outside of a limited service restaurant. Furthermore, the Tribunal found that the applicant had not provided sufficient evidence to demonstrate that the nominated position was genuine and still available at the time of the decision. Consequently, the Tribunal concluded that the applicant failed to satisfy the requirements of regulation 2.72(8) and 2.72(10)(a).

The Tribunal affirmed the decision under review, meaning the nomination for the Chef position was not approved.