K&P Sodhi Pty Ltd (Migration)

This matter concerned an application by K&P Sodhi Pty Ltd for approval of a nomination for a visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for approval of the nomination under section 140GB(2) of the Act and regulation 2.72 of the Migration Regulations 1994. The applicant had nominated the position of Pastrycook (ANZSCO 351112) for a visa holder.

The primary legal issues before the Tribunal were whether the nominated occupation corresponded to an occupation and its 6-digit code specified in instrument IMMI 17/060, and whether the occupation was applicable to the person identified in the nomination in accordance with that instrument. Specifically, the Tribunal had to consider whether the nominated position related to mass or standardised production, which would render the occupation inapplicable under the instrument, particularly when the position was based in a franchise. The Tribunal also considered whether the applicant had provided sufficient information to satisfy the criteria at the time of the decision, given that no response was received to the Tribunal's invitation for updated information.

The Tribunal's reasoning focused on regulation 2.72(10)(aa), which stipulates that the nominated occupation and its code must correspond to those specified in IMMI 17/060 and be applicable to the nominee. The instrument provided that the occupation of Pastrycook was not applicable if the nominated position related to mass or standardised production, including positions based in a franchise or involving full or partial production for distribution to another location, or predominantly using pre-prepared food products. The Tribunal noted that the applicant operated a franchise of The Cheesecake Shop and had not responded to previous correspondence from the Department raising concerns about these inapplicability conditions. The delegate had refused the nomination on the basis that these restrictions applied. The Tribunal found that, as the applicant had not provided requested updated information, it could not be satisfied that the applicant met the requirements for approval of the nomination at the time of the decision.

The Tribunal affirmed the decision under review to refuse the nomination.