Pan Thai Restaurant Pty Ltd (Migration)

This matter concerned an appeal by Pan Thai Restaurant Pty Ltd against a decision to refuse to approve a nomination for a Subclass 457 visa. The nominated person, Miss Thanwarat Malai, was to work as a Café or Restaurant Manager. The core of the dispute revolved around whether the nominated position was genuine and whether the nominee possessed the necessary qualifications and experience, particularly in light of an "inapplicability condition" attached to the occupation in the relevant legislative instrument.

The Tribunal was required to determine if the applicant met the criteria for approval of the nomination under section 140GB(2) and Regulation 2.72 of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the applicant was an approved sponsor, had followed the prescribed nomination process, had identified the nominee correctly, and whether the nominated occupation of Café or Restaurant Manager complied with the requirements of IMMI 17/060, including the condition that the position not be in a limited service restaurant.

The Tribunal found that the applicant was a standard business sponsor and had complied with the procedural requirements for making the nomination. Crucially, regarding the "limited service restaurant" caveat, the Tribunal accepted oral evidence from Ms. Sirattanapusitakon, who detailed the restaurant's operations, including full table service, a commercial kitchen, function hosting, and alcohol service. This evidence demonstrated that the restaurant was not a limited service establishment. The Tribunal was also satisfied that the nominee had the necessary qualifications and experience, having progressed from wait staff to managerial responsibilities and completing management studies, and that the position was genuine and vital to the business's operation.

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