La Piadina Pty Ltd (Migration)

This matter concerned an application by La Piadina Pty Ltd (the nominating employer) for approval of a nomination for a Subclass 457 visa for Vincenzo Soffredini (the nominated employee) for the position of café or restaurant manager. The Department of Home Affairs had refused to approve the nomination, and La Piadina Pty Ltd sought review of this decision before the Tribunal. The Tribunal was required to determine whether the nominating employer met the criteria for approval of the nomination under section 140GB of the Migration Act 1958 (Cth) and regulation 2.72 of the Migration Regulations 1994 (Cth).

The primary legal issue was whether the nominated occupation, café or restaurant manager (ANZSCO code 141111), was applicable to the position offered by La Piadina Pty Ltd, given the restrictions specified in IMMI17/060 Specification of Occupations - Subclass 457 visa. This instrument stipulated that the occupation code was not applicable if the nominated position was in a limited-service restaurant, which included a limited-service café. The delegate had refused the nomination on the basis that the employer had not satisfied the requirements of regulation 2.72(10)(aa) due to the nature of the business.

The Tribunal reasoned that it must approve the nomination if the applicant is an approved sponsor and meets the requirements of regulation 2.72. It then systematically considered each requirement of regulation 2.73, which sets out the process for making a nomination. The Tribunal found that the nomination was lodged in the approved form and fee, identified the nominee, and included the required certifications and location. Crucially, the Tribunal found that the nominated occupation of café or restaurant manager was not excluded by the definition of a limited-service restaurant in the relevant legislative instrument. The Tribunal therefore set aside the delegate's decision and substituted a decision approving the nomination.