Image Property Maintenance (Aust) Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse a nomination for a cook position under the Temporary Residence Transition stream. The applicant, Image Property Maintenance (Aust) Pty Ltd, sought to nominate Shirly Thomas for the position. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under section 140GB(2) of the Migration Act 1958 and Regulation 2.72 of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the nomination complied with the prescribed process, whether the nominator was an approved sponsor, whether the nominee was correctly identified, and whether the nominated occupation of "Cook" met the requirements of instrument IMMI 17/060, particularly concerning the inapplicability conditions related to limited service restaurants and mass production in a factory setting. The Tribunal also considered whether there was any adverse information known to Immigration and whether the nominated position was genuine.

The Tribunal found that the applicant had complied with the nomination process, was an approved standard business sponsor, and had correctly identified the nominee. Crucially, the Tribunal determined that the inapplicability conditions (7) and (8) to the occupation of "Cook" did not apply. It reasoned that the position was not involved in mass production in a factory setting, nor was it in a limited service restaurant, as defined by the regulations and further clarified by the Department's Procedures Advice Manual. The Tribunal considered the key factors in determining a limited service restaurant to be the ordering, serving, and consumption of food, and concluded that the applicant's business did not fit this description.

Consequently, the Tribunal set aside the original decision to refuse the nomination and substituted a decision approving the nomination.