BAMIYAN RESTAURANT (Migration)

This matter concerned an application for approval of a nomination of a position under the Temporary Residence Transition stream, brought before the Tribunal by the applicant, Bamiyan Restaurant, against a refusal decision by the Department. The nominated position was that of a cook, and the application was made in relation to an employee holding a Subclass 457 (Temporary Work (Skilled)) visa.

The primary legal issue before the Tribunal was whether the applicant met all the requirements stipulated in regulation 5.19(3) of the Migration Regulations 1994 for the approval of the nomination. This involved assessing the compliance of the application form, the identification of a relevant visa holder and occupation, the nominator's operational status, and crucially, the fulfilment of employment duration and training requirements.

The Tribunal found that the application itself was compliant with the prescribed form, fee, and certification requirements. It was satisfied that the nominated employee held the requisite Subclass 457 visa and that the occupation of 'Cook' was listed in ANZSCO with the correct 4-digit code. Furthermore, the Tribunal was satisfied that the employee had been engaged in the nominated position full-time since 2014 and that there was a genuine need for their continued employment. The Tribunal then considered the training requirements, noting that while the last contribution to a hospitality scholarship fund was paid after the Department's refusal, it was within 12 months of the end of the relevant period, and that legislative changes had occurred. The Tribunal concluded that the applicant had met the requirements of regulation 5.19.

Consequently, the Tribunal set aside the decision under review and substituted a decision approving the nomination.