Food Pulse Pty Ltd (Migration)

The Administrative Appeals Tribunal considered an application by Food Pulse Pty Ltd for approval of a nomination for the position of Chef under the medium-term stream. The delegate had refused to approve the nomination, primarily on the basis that labour market testing had not been undertaken in the required manner. Food Pulse Pty Ltd argued that the labour market testing requirements were inconsistent with an international trade obligation, specifically the Malaysia-Australia Free Trade Agreement.

The Tribunal was required to determine whether the labour market testing requirements were applicable to Food Pulse Pty Ltd, and if not, whether the company met the other prescribed criteria for the approval of the nomination. This included assessing whether the nomination was made in accordance with the relevant regulations, whether there was any adverse information known to Immigration, whether Food Pulse Pty Ltd was an approved standard business sponsor, and whether any debts had been paid. The Tribunal also had to consider whether the nominated occupation of Chef was applicable to the business, particularly in light of exclusions for positions involved in mass production or limited-service restaurants.

The Tribunal reasoned that the labour market testing requirements did not apply in this case due to their inconsistency with the Malaysia-Australia Free Trade Agreement, as specified in the relevant instrument. Having determined this, the Tribunal proceeded to assess the other criteria. It found that Food Pulse Pty Ltd met all applicable requirements, including being an approved standard business sponsor, having made the nomination in the prescribed form and manner, and that the nominated occupation of Chef was appropriate for its business operations, which were characterised as full-service with casual features rather than a limited-service restaurant. The Tribunal also noted that the nominee's previous visa status rendered certain other requirements inapplicable.

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