Druvegas Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a decision by a delegate of the Minister to refuse the approval of a nomination made by Druvegas Pty Ltd. The nomination was for a position of Chef under the Medium-term stream of the Temporary Skill Shortage (TSS) visa program. The core of the dispute revolved around whether the nominated position was genuine and whether the nominee would perform the majority of tasks associated with the nominated occupation.

The legal issues before the Tribunal were whether the nominated position of Chef was genuine and whether it was a full-time position, as required by regulation 2.72(10) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the tasks to be performed by the nominee corresponded to the ANZSCO description of a Chef, and if the position was genuinely a full-time role. The delegate's refusal was based on the assessment that the nominee's duties did not align with the responsibilities of a Chef, particularly given the absence of subordinate staff such as Cooks or Kitchen hands, and that the advertised requirements for the role were more consistent with that of a Cook.

The Tribunal affirmed the delegate's decision, finding that the applicant had not satisfied the criteria for the nomination to be approved. The Tribunal adopted the approach of qualitatively assessing the nominated position against the ANZSCO definition, as endorsed in *Cargo First Pty Ltd v MIBP* [2016] FCA 30. It was noted that the ANZSCO description for Chef includes leadership and management duties, which were absent in this case. Furthermore, the advertisements for the position required qualifications and experience more aligned with a Cook, and the menu appeared simple. Consequently, the Tribunal was not satisfied that the majority of tasks would be performed at the skill and responsibility level commensurate with a Chef, nor that the position was genuine.

The Tribunal affirmed the decision not to approve the nomination.