De Toni Patisserie & Bakery Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by De Toni Patisserie & Bakery Pty Ltd for the approval of a nomination for a position under the medium-term stream of the Subclass 482 visa program. The dispute centred on whether the nominated position, described as a "chef," genuinely reflected the duties and responsibilities of the nominee, who was a pastry chef, and whether the employer met all the regulatory requirements for sponsorship.

The Tribunal was required to determine if the nominated occupation of "chef" (ANZSCO 351311) was appropriate for the nominee's skills and the actual tasks performed, considering the specific nature of the applicant's business as a wholesale premium patisserie. Further, the Tribunal had to assess whether the employer had complied with all relevant legislative criteria, including those pertaining to the genuineness of the position, labour market testing, and any international trade obligations. The Tribunal also considered extensive documentation and submissions, including information not previously available to the Department.

The Tribunal found that while the nominee was a highly skilled pastry chef with extensive experience, the tasks she performed in the nominated role, as evidenced by the provided materials, aligned more closely with the duties of a pastry cook than a general chef. However, the Tribunal noted that the employer had previously sponsored another nominee for the same position on similar terms, which had been approved. Crucially, the Tribunal considered that the nominee was currently working in the position and had applied for a visa based on this nomination. The Tribunal also addressed the labour market testing, finding it potentially inconsistent with international trade obligations, and concluded that the original decision had been made without considering all necessary information.

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