BF TRADERS PTY LTD (Migration)

The Administrative Appeals Tribunal considered a decision to refuse the nomination of a position for a Subclass 457 visa. The applicant, BF TRADERS PTY LTD, sought approval for a nomination for the occupation of "Cook – ANZSCO: 351411". The Tribunal's role was to determine whether the applicant met the criteria for approval of this nomination.

The primary legal issue before the Tribunal was whether the nominated occupation of "Cook" met the requirements of subclause 2.72(10)(aa) of the Migration Regulations 1994, as specified in instrument IMMI 17/060. This instrument outlined certain "inapplicability conditions" for nominated occupations, specifically conditions 7 and 8, which stated the position should not be involved in mass production in a factory setting or be in a limited service restaurant. The Tribunal also had to consider whether the applicant was an approved sponsor and met other relevant regulatory requirements, although the central dispute revolved around the nature of the nominated position.

The Tribunal affirmed the delegate's decision to refuse the nomination. The delegate had found that the nominator's business, identified as "Indian Take Away and Cocktails," appeared to be a limited service restaurant, potentially offering fast food, and that the menu board indicated a "fast food" section. Photographs of the restaurant supported this assessment. Consequently, the Tribunal concluded that the nominated position fell within the "inapplicability conditions" specified in IMMI 17/060, meaning the criteria for approval under s.140GB(2) were not met.

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.