MAMAK CHATSWOOD PTY LTD (Migration)

This matter concerned an application by MAMAK CHATSWOOD PTY LTD for approval of a nomination for the occupation of Café or Restaurant Manager. The Department had refused to approve the nomination, finding that the nominated position was not genuine and that there was insufficient information to demonstrate the nominee would perform the full breadth of duties associated with the role. The applicant sought review of this decision before the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under section 140GB(2) of the Migration Act 1958 (Cth) and Regulation 2.72 of the Migration Regulations 1994 (Cth). Specifically, the Tribunal had to consider whether the nomination complied with the prescribed process, whether the nominator was a standard business sponsor, whether there was any adverse information known to Immigration, and whether the nominated occupation corresponded to a specified occupation in the relevant instrument, including any applicable caveats.

The Tribunal found that the applicant had complied with the procedural requirements for making a nomination and that it was a standard business sponsor. While adverse information concerning a person associated with the applicant had been identified in related proceedings, the Tribunal determined it was reasonable to disregard this information. Crucially, the Tribunal found that the nominated occupation, Café or Restaurant Manager (ANZSCO 141111), was consistent with the applicant's business operations, which involved a large dining-in facility preparing meals from raw materials and serving customers at tables. The Tribunal was satisfied that the applicant's operation did not fall within the definition of a limited service restaurant, which was a caveat to the occupation. The Tribunal also considered the delegate's concerns about the genuineness of the position and the division of duties, and concluded that the evidence supported the nominee performing the full range of duties.

Consequently, the Tribunal set aside the Department's decision and substituted a decision approving the nomination.