Michellechen Pty Ltd (Migration)

This matter concerned an application by Michellechen Pty Ltd for the approval of a nomination for a Subclass 457 visa. The nominated occupation was Café or Restaurant Manager. The Tribunal was required to determine whether the applicant met the criteria for the approval of the nomination under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominated position of Café or Restaurant Manager was a "genuine position" and whether the duties associated with the role met the requirements of the relevant regulations, particularly concerning the occupation's applicability and the nature of the business. The Tribunal also considered the specific requirements for existing Subclass 457 visa holders and whether the nominated business, Ah Wong Roadhouse in Wongan Hills, Western Australia, constituted a "limited service restaurant" as defined by the regulations.

The Tribunal reasoned that the applicant had satisfied the procedural requirements for the nomination, including identifying the nominee, the occupation with its ANZSCO code, and the location of employment. Crucially, the Tribunal found that the business, Ah Wong Roadhouse, was not a limited service restaurant. Evidence presented, including the fact that meals were cooked to order, customers were seated and served, and the restaurant's inclusion in a tourism publication, indicated it operated as a full-service establishment. The Tribunal also noted that the business provided catering services and employed seven Australians, demonstrating its genuine operation and contribution to the local economy.

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