Huong's Food Service Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision by a delegate of the Minister for Immigration and Border Protection to refuse to approve Huong’s Food Service Pty Ltd’s nomination for a Subclass 457 visa. The applicant sought review of the delegate's decision, which was made on 11 August 2017, on the basis that the nominated position of Café or Restaurant Manager was not genuine. The AAT considered the applicant's business operations, financial performance, and its role in the local community, as well as the visa nominee's involvement in the business.

The primary legal issue before the Tribunal was whether Huong’s Food Service Pty Ltd satisfied the criteria for the approval of its nomination under section 140GB of the *Migration Act 1958* and regulation 2.72 of the *Migration Regulations 1994*. Specifically, the Tribunal had to determine if the nominator was a standard business sponsor or a party to a work agreement at the time of the decision, as required by regulation 2.72(4). The Tribunal also considered the applicant's request for an adjournment to await the outcome of a new standard business sponsorship application.

The Tribunal reasoned that regulation 2.72(4) requires the nominator to be a standard business sponsor or a party to a work agreement at the time of the Tribunal's decision. It was undisputed that Huong’s Food Service Pty Ltd was not currently a standard business sponsor. While the applicant had lodged a new application for standard business sponsorship and received a request for further information from the Department of Home Affairs, the Tribunal noted the significant delays that had already occurred since the original decision and the uncertainty surrounding the new sponsorship application's outcome and timeframe. Citing the High Court's emphasis on speed and efficiency in proceedings, the Tribunal concluded that granting the requested adjournment would unduly prolong the matter and that the applicant had not met the essential criterion of being a standard business sponsor.

Consequently, the Tribunal affirmed the delegate's decision not to approve the nomination.