MORETON BAY REGIONAL FOOD AND CATERING PTY LTD (Migration)

The Administrative Appeals Tribunal considered an application by Moreton Bay Regional Food and Catering Pty Ltd, trading as Fiesta Restaurant and Bar, for approval of a Regional Sponsored Migration Scheme – Visa Subclass 187 Employer Nomination in the Direct Entry stream. The nomination was for the position of Café or Restaurant Manager in favour of Chiragkumar Chandrakant Mysuria, with the proposed place of employment listed as Mooloolaba, Queensland. The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994.

The central legal issue was whether Moreton Bay Regional Food and Catering Pty Ltd was actively and lawfully operating a business in Australia at the nominated Mooloolaba address, and whether it directly operated that business, as required by regulation 5.19(4)(b). The Tribunal also considered the applicant's compliance with other criteria, including the genuine need for the employee and the business's operational history. The Tribunal applied section 359AA of the Migration Act 1958, informing the applicant of the information that would form the basis of the decision and providing an opportunity to respond.

The Tribunal's reasoning focused on the discrepancy between the nominated address in Mooloolaba and the actual operational base of the business, which was identified as Morayfield, Queensland. Evidence indicated that the company had never operated a restaurant in Mooloolaba and that the director intended to open a restaurant there only if the visa was granted. Furthermore, the absence of supporting documentation for the Mooloolaba premises, such as a lease agreement or business licences, and the director's admission that the Morayfield restaurant had closed due to the nominee's departure, led the Tribunal to conclude that the nominator was not actively and lawfully operating a business at the nominated Mooloolaba location. Consequently, the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19(4).

The Tribunal affirmed the decision under review to refuse the nomination.