SHOUQ Pty Ltd (Migration)

This matter concerned an application for approval of a nomination of a position, brought by SHOUQ Pty Ltd. The dispute arose from the Department's decision to refuse the nomination, which was subsequently affirmed by the Tribunal. The Tribunal, presided over by Member Nicola Findson, was required to determine whether the applicant met the criteria for approval of the nomination under section 140GB(2) of the Migration Act 1958 and regulation 2.72 of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the nominated occupation, Cook (ANZSCO 351411), corresponded to an occupation and its 6-digit code specified in instrument IMMI 17/060, and whether that occupation was applicable to the person identified in the nomination, considering the nature of the applicant's business. Additionally, the Tribunal had to consider whether the nominated position was genuine, as required by regulation 2.72(10)(f). A key aspect of the case was the applicant's failure to respond to the Tribunal's invitation to provide updated and current information regarding all relevant criteria.

The Tribunal reasoned that the nominated occupation of Cook was not applicable under IMMI 17/060 if the position involved mass production in a factory setting or was located in a limited service restaurant. Based on the provided material indicating the nominated position was at Duotone Café, which offered a limited breakfast and beverage menu and did not take reservations, the Tribunal concluded it constituted a limited service restaurant. This fell within a caveat of IMMI 17/060, precluding approval. Furthermore, the applicant's failure to provide requested information, including details about the nominated position's duties, its place within the organisational structure, and financial circumstances, meant the Tribunal could not be satisfied that the applicant met the requirements for approval at the time of its decision. The Tribunal affirmed the decision under review to refuse the nomination.