Envylicious Kitchen Pty Ltd (Migration)

This matter concerned an appeal by Envylicious Kitchen Pty Ltd against a decision to refuse the approval of its nomination for the occupation of Café or Restaurant Manager. The applicant trades as Caffettiera Kitchen & Espresso. The core of the dispute revolved around whether the nominated occupation and its associated position met the requirements stipulated in the Migration Regulations 1994, specifically subclause 2.72(10)(aa).

The Tribunal was required to determine if the nominated occupation, Café or Restaurant Manager (ANZSCO 141111), and its corresponding 6-digit code, corresponded to an occupation and code specified in the relevant instrument, and crucially, whether the occupation was applicable to the person identified in the nomination. This involved considering whether any inapplicability conditions, known as caveats, applied to the nominated occupation under the relevant instrument, IMMI 17/060.

The Tribunal affirmed the delegate's decision to refuse the nomination. The applicant had been invited to provide further information to demonstrate that the nominated occupation met the applicable requirements, particularly concerning any inapplicability conditions. However, the applicant failed to respond to this invitation or provide any further evidence. The relevant instrument specified that the occupation of Café or Restaurant Manager is subject to an inapplicability condition where the position is in a limited service restaurant. While not strictly bound by departmental guidelines, the Tribunal found them useful and noted that they define limited service restaurants to include, among other things, fast food services, fast casual restaurants, drinking establishments with limited food service, and limited service cafes. Given the applicant's failure to provide information to demonstrate that the caveat did not apply, the Tribunal was not satisfied that the requirements of regulation 2.72(10)(aa) had been met. Consequently, the Tribunal affirmed the decision not to approve the nomination.