DLJ HOLDINGS PTY LTD ATF THE D & L TRUST (Migration) - [2025] ARTA 437

DLJ HOLDINGS PTY LTD ATF THE D & L TRUST (Migration) [2025] ARTA 437 (18 March 2025)
DECISION AND
REASONS FOR DECISION
Applicant:DLJ HOLDINGS PTY LTD ATF THE D & L TRUST
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2303445

Tribunal:General Member A McMurran
Place:Sydney
Date: 18 March 2025
DECISION:The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the applicant meets r 5.19(9)(j) of the Regulations.

Statement made on 18 March 2025 at 10:43am

CATCHWORDS
MIGRATION – nomination of a position – Direct Entry Stream – position of Chef – limited-service restaurant – streamline franchise menu – inapplicability condition – fast casual restaurant – full table service with large commercial kitchen – decision under review set aside
LEGISLATION
Administrative Review Tribunal Act 2024, ss 79, 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958
Migration Regulations 1994, r 5.19
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application lodged 10 March 2023 with the Administrative Appeals Tribunal (AAT) for review of a decision made by a delegate of the Minister for Home Affairs on 17 February 2023 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The application
The applicant, DLJ HOLDINGS PTY LTD ATF THE D & L TRUST (referred to as the applicant/nominator), applied for approval on 22 February 2022. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval. There are additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream, and a Labour Agreement stream.
If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream. [1]The nominee, Mr Yuichi Komazaki, {“the nominee”} is a Japanese citizen and has been nominated for the position of Chef (ANZSCO 351311) in the applicant’s restaurant business. The nominee has applied separately for a Subclass 186 visa.
The decision under review
[1] Regulation 5.19(9)
This review is concerned with whether the position nominated is affected by a restriction specified in the applicable legislative instrument, known as, and referred to as a legislative caveat. The caveat applies if the applicant’s business is conducted as a ‘limited service restaurant’.
Broadly speaking, a limited service restaurant is defined in the instrument as a food service which can properly be described as:
·A fast food or takeaway service
·A fast casual restaurant
·A drinking venue offering only limited food service
·Limited service cafes, coffee shops and mall cafes, and
·Limited service pizza restaurants
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(j) of the Regulations, because the nominated position was located in a ‘limited service restaurant’.
If that is the case, then r 5.19(9)(j) of the Regulations is not met and the application must be refused.
If the requirement is met, however, then the appropriate course is to remit the matter to the Department for further consideration.
Tribunal process
On 18 December 2024, following constitution of this review to a Member for a decision, the Tribunal served the applicant with a Direction Notice under s 79 of the ART Act. The Notice required the applicant to update the Tribunal and invited submissions.
On 24 January 2025, following an extension granted by the Tribunal, the applicant provided detailed submissions with information and documents.
Subsection 106(3) of the ART Act provides that if it appears to the Tribunal that issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding, and where the decision is wholly in favour of the applicant, it may reach its decision on review, without a hearing.
In this matter, the Tribunal has considered the available information from the Department file and the ART file, the Act and the Regulations, and the applicant’s response to the Direction Notice. The Tribunal finds it is satisfied that it can adequately determine the matter on review favourably for the applicant on the available information, and without a hearing.
The applicant was at all times represented in relation to this review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision that r 5.19(9)(j) is met. The matter is remitted to the Department for reconsideration of the remaining criteria for the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirement for approval of the nomination set out in the stream specific requirements in reg 5.19(9)(j) for the direct entry stream, and which are extracted in the attachment to this decision.
Regulation 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met.
Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019.
In this case, the nomination relates to a Subclass 186 visa.
Regulation 5.19(10) requires that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(11) and in force at the time the application is made.
In addition, the occupation must apply to the identified person in accordance with the instrument.
In this case, the relevant instrument is LIN19/049. The occupation of Chef applies to the nominee as identified in the application. The instrument specifies that the occupation of ‘Chef’ does not apply where the nominated position is in a ‘limited service restaurant’, as defined.
Is the nominated position conducted in a ‘limited service restaurant’ ?
The description of the type of restaurants as set out above [2] uses general language, and which terms and phrases are not themselves defined. The Tribunal must have regard to the objective information available as to the operation of the restaurant to determine if it meets one or other of the described categories.
[2] Par 7
The applicant’s restaurant is described on its website [3] as “Perth’s longest and most loved sushi train restaurant.” It operates 7 days per week from an address at Innaloo. It takes table bookings and reservations from patrons. It offers full table service, and the restaurant is styled and themed according to Japanese custom with a large open commercial kitchen. It is licenced for the service of alcohol. It is in a purpose built location, stand-alone premises, and not located in a shopping mall. It has a large and variable menu offering a range of Japanese dishes. It is set up for up to 100 dine-in customers with both indoor and outdoor table settings including table booths for bookings.
[3] >
In response to the Tribunal’s direction notice, the applicant produced a detailed organisation chart. The applicant currently employs a head chef (Australian citizen) and 6 chefs, working in rosters. There are 2 Australian citizens and 4 temporary resident-chefs, which includes the nominee. There is a restaurant manager, two food and beverage managers and 27 front of house staff, 20 of whom who are Australian citizens, all working shifts. There are 7 cooks and 17 kitchen hands, including dishwashers.
The Tribunal has also had regard to the applicant’s submission to the Department from the director, Mr Tierney, on 12 November 2019. The submission provided evidence of the applicant’s full-service restaurant.
The applicant further provided a copy of an AAT review decision[4] for the applicant for another nominee who was identified as a cook.
[4] AAT case 1932056
In that review, the Tribunal Member referred to a similar caveat requiring that the occupation was not in a ‘limited service restaurant’, as similarly defined. The AAT in that decision found that the applicant’s business, identical to the current business activity, was not conducted as a limited services restaurant.[5]
[5] Ibid at [26]
The applicant noted in a submission to the AAT on 10 March 2023 that “this appeal is identical to 5 previous appeals we have made in which all have been overturned in our favour”.
In the delegate’s decision in this instance, it refers to the fact the restaurant has a high number of staff “to deal with the long opening hours and high traffic of customers. However, no matter how busy the business is, this does not change the fact that the venue is a fast casual restaurant.”
The delegate goes on to describe “Restaurants such as this usually has a set menu, which may change from time to time, but are mainly comprised of dishes which are quickly prepared and easy to put together, such is the nature of these types of fast casual dining venues.”
The delegate formed the view having regard to the applicant’s website that it presents the “type of items” that are indicative of a fast casual restaurant. That is, that the food items are easy and quick to prepare and are ordered from a set menu. The delegate then concluded that the business was conducted as a ‘fast and casual’ dining venue.
The Tribunal has considered all the available information, and the applicant’s submissions. The Tribunal has noted that the term ‘fast casual restaurant’ is not itself a defined term and depends upon the particular facts and circumstances being considered.
The Tribunal finds in this review that the information in this instance is not indicative of patrons who are not dining-in, and who are looking for a quick meal environment where they purchase pre-prepared food items either for takeaway or to consume quickly and without a usual restaurant environment, including seating, and consistently with a more ‘fast casual’ approach. Patrons in this instance are seated awaiting table service and food preparation, which includes drinks and alcohol, and are not pressed to leave quickly. Speed of service and dining appears to play little part in this circumstance.
Considering the entirety of the information, including the size and location of the premises, the menu, the seating arrangements and the presentation, the Tribunal finds it is satisfied the business is not operated as a ‘fast casual’ dining establishment. The Tribunal further finds that the remaining definitions in the applicable caveat do not apply. For these reasons, the Tribunal respectfully disagrees with the findings of the delegate.
Given the above findings, the Tribunal is satisfied that reg 5.19(10) is met. Accordingly, reg 5.19(9)(j) is also met.
Conclusion
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19(9)(j) for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the applicant meets r 5.19(9)(j) of the Regulations.
Representative for the Applicant: Mr Thomas Griffiths (MARN: 1387008)