Fika Swedish Kitchen Pty Limited (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning Fika Swedish Kitchen Pty Limited's nomination for a Subclass 457 visa. The applicant sought to nominate Ms. Adela Koubova for the occupation of Café or Restaurant Manager. The core dispute revolved around whether Fika Swedish Kitchen Pty Limited met the criteria for approving the nomination, particularly in light of a caveat associated with the nominated occupation in the relevant legislative instrument.

The Tribunal was required to determine if the applicant satisfied the requirements of Regulation 2.72 of the Migration Regulations 1994, which governs the approval of nominations for Subclass 457 visas. Specifically, the Tribunal had to assess whether the nomination was made in accordance with the prescribed process, if the nominator was an approved standard business sponsor, if the nominee was correctly identified, and if the nominated occupation complied with the specifications in IMMI 18/004, including any applicable caveats. A key issue was whether the business operated a "limited service restaurant," which would preclude the nomination under the instrument.

The Tribunal reasoned that the applicant had met the procedural requirements for the nomination, was an approved standard business sponsor, and had correctly identified the nominee. Crucially, after considering departmental policy and the specific operations of Fika Swedish Kitchen Pty Limited, the Tribunal concluded that the business did not operate a limited service restaurant. This finding meant that the caveat in IMMI 18/004 did not prevent the nomination. The Tribunal found that all applicable criteria under Regulation 2.72 were satisfied.

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