KY Food CBD Pty Ltd (Migration)

This matter concerned an application by KY Food CBD Pty Ltd for approval of a nomination for a Subclass 457 visa. The nominated occupation was Café or Restaurant Manager (ANZSCO Code 141111). The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under the Migration Regulations 1994.

The legal issues before the Tribunal were whether the nominated occupation corresponded with a relevant instrument, specifically IMMI 17/060, and whether the position was in a limited service restaurant, which would render the nomination inapplicable. Additionally, the Tribunal considered whether the nominee had an undetermined Subclass 457 visa application or associated review application, and whether there was sufficient evidence to establish that the nominated position was genuine.

The Tribunal reasoned that Regulation 2.72(5) of the Migration Regulations 1994 was not met because the nominee did not have an undetermined Subclass 457 visa application or associated review application, meaning the Tribunal was not satisfied the nominee would work in the nominated occupation. Furthermore, IMMI 17/060 contained an inapplicability condition for the nominated occupation, stating it did not apply to positions in limited service restaurants, including 'fast casual restaurants'. The Tribunal found that the applicant operated a Sushi Train restaurant, which it considered to be a limited service restaurant based on the self-service model and limited table service. Consequently, the Tribunal was not satisfied that the nominated position was in other than a limited service restaurant, and therefore the nominated occupation did not correspond with the relevant instrument as required by subclause 2.72(10)(aa). The Tribunal also noted a lack of contemporary evidence regarding the applicant's commercial operations and that the applicant had not responded to the Tribunal's correspondence.

The Tribunal affirmed the decision not to approve the nomination.