Kamadenu Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a nomination dispute involving Kamadenu Pty Ltd and the Department of Home Affairs. The core of the disagreement concerned the nomination of a position for a Café or Restaurant Manager, specifically whether the restaurant's operational model excluded it from the relevant occupation category due to a "limited service restaurant" exclusion. The Tribunal was tasked with determining if the applicant met the criteria for the approval of this nomination.

The legal issues before the Tribunal were whether the nominated occupation of Café or Restaurant Manager (ANZSCO 141111) was applicable to the applicant's business, given the delegate's finding that it operated as a limited service restaurant, and whether all other regulatory requirements for the nomination's approval had been satisfied. This involved assessing the nature of the restaurant's service against the criteria outlined in the Migration Regulations 1994, particularly in relation to the exclusion for limited service restaurants within the specified occupation instrument.

The Tribunal reasoned that the delegate's decision was based on a mischaracterisation of the restaurant's service. Evidence presented indicated that the restaurant provided a full-service dining experience, including greeting customers, seating them, taking orders at their tables, serving food and beverages at the table, clearing plates and cutlery, and providing bills at the table. The Tribunal noted that approximately 80-85% of customers dined on the premises, suggesting that takeaway was a minor component of the business. Based on this evidence, the Tribunal concluded that the restaurant did not fit the definition of a "limited service" establishment. The Tribunal found that Kamadenu Pty Ltd met all applicable criteria for the nomination to be approved.

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