TASTE OF FIJI (Migration)

This matter concerned a review of a decision not to approve a nomination for a Subclass 457 visa. The applicant, operating a restaurant, sought to nominate Mrs Kiranjeet Kaur for the occupation of Cook. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the nomination complied with the prescribed process, whether the nominator was a standard business sponsor, whether the nominee was correctly identified, and whether the nominated occupation of Cook was specified in the relevant instrument and not excluded due to the nature of the business. The Tribunal also considered whether there was any adverse information known to Immigration about the applicant or associated persons, and whether the tasks of the nominated position genuinely matched the occupation of Cook, particularly in light of the exclusion for fast food or takeaway food services.

The Tribunal found that the nomination was made in accordance with the approved form and fee, and that the nominator was a current standard business sponsor. It was satisfied that Mrs Kiranjeet Kaur was correctly identified as the proposed visa holder. Crucially, the Tribunal determined that the nominated occupation of Cook, with its corresponding ANZSCO code, appeared on the relevant list in the applicable instrument. It also found that the business was not a fast food or takeaway food service, thus not falling within the exclusion. The Tribunal noted the absence of adverse information and confirmed that the tasks of the position included a significant majority of the tasks of a Cook.

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