Patwari Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse the approval of a nominated position by Patwari Pty Ltd. The dispute concerned whether the nominated occupation of Café or Restaurant Manager, as specified in instrument IMMI 17/060, was applicable to the applicant's business, a franchise café known as San Churro at Bondi Beach. The Tribunal was required to determine if the applicant met the criteria for approval of the nomination, specifically whether the nominated occupation and its corresponding code aligned with IMMI 17/060 and if the occupation was applicable to the person identified in the nomination, considering any inapplicability conditions.

The Tribunal's reasoning focused on subclause 2.72(10)(aa) of the Migration Regulations 1994, which requires the nominated occupation to correspond to an occupation specified in IMMI 17/060 and to be applicable to the nominated person. IMMI 17/060 lists "Café or Restaurant Manager 141111" but includes an inapplicability condition for positions in "limited service restaurants." The Tribunal interpreted "limited service restaurant" to include fast food services, fast casual restaurants, and limited service cafes, such as coffee shops or mall cafes. Given that the applicant's business primarily served pre-made desserts with limited on-site preparation and did not appear to have a full commercial kitchen, the Tribunal concluded that it constituted a limited service café or fast casual restaurant.

The Tribunal noted that the applicant had been put on notice by the original delegate regarding the inapplicability of the nominated occupation due to these restrictions. Despite an invitation to provide further information addressing this issue, the applicant failed to respond or submit any additional supporting material. The Tribunal considered the existing material, including menus and photographs, and found it insufficient to demonstrate that the inapplicability condition did not apply. Consequently, the Tribunal was not satisfied that the applicant met the requirements of subclause 2.72(10)(aa). The Tribunal affirmed the decision under review to refuse the nomination.