MS Charcoal Pty Ltd (Migration)

MS Charcoal Pty Ltd (Migration) concerned an application for approval of a nomination for a Subclass 457 visa. The applicant, MS Charcoal Pty Ltd, sought to nominate Ms Younguen Lee for the occupation of Chef (ANZSCO 351311). The decision under review was whether the applicant met the criteria for approval of this nomination.

The Tribunal was required to determine if MS Charcoal Pty Ltd, as an approved standard business sponsor, had satisfied the requirements of Regulation 2.72 of the Migration Regulations 1994. Specifically, the Tribunal considered whether the nomination was made in accordance with the prescribed process, whether the nominator was an approved sponsor, whether the nominee was correctly identified, and whether the nominated occupation met the specified criteria, including any inapplicability conditions. The Tribunal also examined whether the position associated with the nominated occupation was genuine and if there was any adverse information known to Immigration.

The Tribunal found that MS Charcoal Pty Ltd had met all the applicable criteria for the nomination to be approved. It was satisfied that the nomination was lodged on the approved form, accompanied by the prescribed fee, and included the necessary certifications. The applicant was confirmed as a standard business sponsor, and Ms Lee was identified as the visa applicant who would perform the nominated occupation. Crucially, the Tribunal determined that while the occupation of Chef had inapplicability conditions related to mass production in a factory setting or limited service restaurants, the Mien Korean Style Chinese Restaurant operated as a full-service establishment. Evidence was presented that the restaurant offered table service, catered to dietary needs, cooked meals to order, and the nominee managed kitchen staff, ordered stock, and cooked using fresh ingredients, demonstrating the genuineness of the position and its alignment with the Chef occupation, despite the caveats.

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