Merryanti (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (Subclass 482) by Ms Merryanti. The applicant sought review of a decision to refuse her visa. The core of the dispute revolved around whether the applicant was the subject of an approved nomination, a prerequisite for this visa subclass.

The Tribunal was required to determine whether the nomination associated with the applicant's position as a cook was valid and approved. Specifically, the Tribunal had to consider whether the nominator, a restaurant business, qualified as a "limited-service restaurant" under the relevant legislative instrument, and whether the nominated occupation of cook corresponded to the actual position offered. The Tribunal also considered evidence regarding the nominator's business operations, including its engagement in catering and its employee structure, as well as the nominee's employment history and qualifications.

The Tribunal affirmed the delegate's decision that the nominator was a limited-service restaurant, primarily engaged in takeaway orders with limited dine-in facilities. This classification meant the nominated position did not meet the requirements of the relevant legislative instrument, which defined limited-service restaurants as those involved in mass production in a factory setting, rather than full-service establishments. While acknowledging a previous tribunal decision that found a different store of the same overarching business was not a fast-food outlet, the Tribunal noted that this decision predated significant changes in regulatory and policy requirements for temporary skilled visas. The Tribunal concluded that a fundamental requirement for the visa, namely an approved nomination, was not met.

Consequently, the Tribunal affirmed the decision not to grant the Temporary Skill Shortage (Class GK) visa to the applicant.