Dante Co Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision to refuse a nomination made by Dante Co Pty Ltd. The dispute concerned whether the nominated position met the requirements for approval under migration regulations. The Tribunal was tasked with determining if the applicant had satisfied the criteria for approving the nomination, specifically in relation to the nominated occupation and its compliance with relevant legislative instruments.

The primary legal issue before the Tribunal was whether the nominated occupation, Chef (ANZSCO 351311), was subject to an exception or caveat contained within LIN 19/048, a legislative instrument governing nominated occupations. The Tribunal also had to consider whether the specific circumstances of the employment, including the nature of the business and its operations, brought the nominated occupation within the scope of these exceptions. Furthermore, the Tribunal examined whether the business would likely provide employment going forward, given that the business would not be renewing its lease.

The Tribunal reasoned that Regulation 2.72(8) of the Migration Regulations 1994 required the nominated occupation and its code to correspond to an occupation specified in the relevant instrument in force at the time of nomination. It found that the occupation of Chef was subject to LIN 19/048, which excluded the occupation if it was to be undertaken in a fast food casual restaurant or café. Based on oral evidence, the Tribunal was satisfied that the nominated occupation was to be undertaken in a franchised café within a shopping centre, exhibiting characteristics such as a limited menu with fast food traits, counter service for orders and payment, a lack of kitchen staff, and early closing hours, all of which indicated that the exceptions in the instrument applied.

Consequently, the Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved. The decision under review, which refused the nomination, was therefore affirmed.