Bondi Eatery Co Pty Ltd (Migration)

This matter concerned an application by Bondi Eatery Co Pty Ltd for approval of a nomination for a Subclass 457 visa. The applicant sought to nominate Mr Sanjan Maharjan Dangol for the occupation of Café/Restaurant Manager (ANZSCO 141111). The core dispute revolved around whether the nominated position met the criteria for approval, particularly in light of the delegate's refusal based on the occupation not being approved for limited-service restaurants.

The Tribunal was required to determine if the applicant met the criteria for approval of the nomination under section 140GB(2) of the Migration Act 1958 and Regulation 2.72 of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the nomination complied with the prescribed process, if the nominator was a standard business sponsor, if the nominee was correctly identified, and if the nominated occupation corresponded to an approved occupation under the relevant instrument (IMMI 18/004). A key issue was the interpretation of the "inapplicability provision" concerning limited-service restaurants, and whether the applicant's business, which ordinarily catered predominantly for dine-in customers, fell within this exclusion.

The Tribunal found that the applicant had met all procedural requirements for the nomination, including being a standard business sponsor and correctly identifying the nominee. Crucially, regarding the limited-service restaurant exclusion, the Tribunal considered evidence that the business, despite adapting to takeaway during COVID-19 restrictions, ordinarily catered for dine-in customers, with significant seating capacity. The Tribunal concluded that, when considered holistically, the business was not a limited-service restaurant. Furthermore, the Tribunal was satisfied that the nominated occupation corresponded to an approved occupation in IMMI 18/004 and that the terms and conditions of employment would be no less favourable than those provided to an Australian citizen or permanent resident.

Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision approving the nomination.