Lislay Pty Ltd (Migration)

This matter concerned an appeal by Lislay Pty Ltd against a decision to refuse the nomination of a 'Cook' position. The applicant, a Standard Business Sponsor, had nominated the occupation of 'Cook' for a visa holder. The core of the dispute revolved around whether the nominated position met the criteria stipulated by the Migration Regulations 1994, specifically an 'inapplicability condition' that applied to the occupation of 'Cook' in certain circumstances.

The Tribunal was required to determine if the nominated position for a 'Cook' satisfied the requirements of subclause 2.72(10)(aa) of the Migration Regulations 1994, as amended. This subclause mandates that the nominated occupation and its corresponding 6-digit code must be specified in the relevant instrument, and that the occupation must be applicable to the identified person. Crucially, the 'Cook' occupation was subject to an inapplicability condition, which stated that the position should not be in a "limited service restaurant." The Tribunal had to assess whether the applicant's business qualified as a limited service restaurant, thereby triggering this inapplicability condition.

The Tribunal affirmed the decision to refuse the nomination. It reasoned that the delegate's finding that the business did not offer full table service was supported by the evidence, including the ordering and payment process, the limited menu, and the provision of set menus. Despite the applicant's claims of having a liquor licence and offering gourmet food, no evidence was provided to demonstrate the employment of waitstaff or an organisational structure indicative of full table service. Furthermore, the applicant failed to respond to the Tribunal's correspondence, leaving the Tribunal to consider only the material submitted to the Department. Consequently, the Tribunal was not satisfied that the applicant met the criteria for approval of the nomination, specifically the condition that the position not be in a limited service restaurant.