D COMPANY PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by D Company Pty Ltd concerning the refusal to approve a nominated position for a Café or Restaurant Manager. The core dispute revolved around whether the nominated occupation met the criteria specified in the Migration Regulations 1994, particularly in light of an "inapplicability condition" attached to that occupation. The Tribunal was tasked with determining if the applicant had satisfied all relevant requirements for the nomination to be approved.

The primary legal issue before the Tribunal was whether the nominated position of 'Café or Restaurant Manager' was applicable under the relevant legislative instrument, IMMI 17/060, given the "inapplicability condition" which stipulated that the occupation must not be in a limited service restaurant. The Tribunal also had to consider whether the applicant had provided sufficient information to satisfy the criteria under regulation 2.72, especially after failing to respond to an invitation from the Tribunal to provide updated and current information.

The Tribunal affirmed the delegate's decision to refuse the nomination. It reasoned that the nominated occupation, 'Café or Restaurant Manager', was subject to an inapplicability condition, meaning it could not be in a limited service restaurant. Evidence, including photographs and an organisational chart, indicated that the applicant's business was part of a petrol station with very minimal onsite seating, characterising it as a fast-food location offering speedier service than a full-service restaurant. The Tribunal found this description aligned with the definition of a limited service restaurant, thus rendering the nominated occupation inapplicable. Furthermore, the applicant's failure to respond to the Tribunal's request for further information meant the Tribunal could not be satisfied that the applicant met the requirements for approval at the time of its decision.

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