The Trustee for Alex and Lisa Unit Trust (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the approval of a nominated position for a Chef under migration law. The applicant, The Trustee for Alex and Lisa Unit Trust, sought to have the nomination approved. The core of the dispute revolved around whether the nominated position, to be filled by Nut Malarath, met the specific criteria for a Chef occupation, particularly concerning the nature of the restaurant and its service model.

The Tribunal was required to determine if the applicant had satisfied the various regulatory requirements for approving a nomination, as stipulated in the Migration Regulations 1994. This included assessing whether the nomination was made in accordance with the prescribed process, if the nominator was an approved sponsor, and if the nominee was correctly identified. Crucially, the Tribunal had to consider whether the nominated occupation of 'Chef' corresponded to an occupation specified in the relevant instrument (IMMI 17/060) and whether any inapplicability conditions, such as the position being in a limited service restaurant, were met.

The Tribunal reasoned that the applicant had met the procedural requirements for making the nomination and that the nominator was a standard business sponsor. It also found that the nominee was correctly identified. The central issue of the nominated occupation being a 'Chef' was addressed by examining the definition of a "limited service restaurant" and considering factors outlined in the Department's Procedures Advice Manual (PAM3). The Tribunal concluded that the restaurant in question did not fit the description of a limited service restaurant, as it provided full table service, had a varied menu, and involved significant food preparation, distinguishing it from fast food or takeaway services.

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