Medi Bar Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a dispute between Medi Bar Pty Ltd and the Department of Home Affairs concerning the approval of a nomination for a Subclass 482 visa. The nomination was for the occupation of Café or Restaurant Manager under the Short-term stream.

The Tribunal was required to determine whether Medi Bar Pty Ltd met the criteria for approval of the nomination, specifically focusing on whether the nomination complied with the prescribed process under regulation 2.72 and whether there was any adverse information known to Immigration about the applicant or an associated person that could not be disregarded. The Tribunal also had to consider if the position was genuine and if the terms and conditions of employment were no less favourable than those for an Australian worker.

The Tribunal found that Medi Bar Pty Ltd had complied with the procedural requirements for making the nomination, including using the approved form, paying the required charges, and correctly identifying the nominated occupation and nominee. Crucially, the Tribunal addressed adverse information concerning an associated entity, Steak Co Pty Ltd, which had been barred from sponsorship for 12 months due to underpayment of staff. The Tribunal determined that while this constituted adverse information, it was reasonable to disregard it. This conclusion was based on the fact that the bar had expired, Steak Co Pty Ltd had repaid the underpaid wages, and Medi Bar Pty Ltd had implemented a digital payroll system to prevent future underpayments. Furthermore, no subsequent non-compliance by Medi Bar Pty Ltd had been demonstrated, and steps had been taken to negate the implications of the past conduct. The Tribunal was satisfied that the tasks of the nominated position corresponded to the ANZSCO requirements for Café or Restaurant Manager and that the terms and conditions of employment were not less favourable than those for an Australian worker.

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