THETRUSTEEFORKIRRIBILLIPROJECTUNITTRUST (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a case involving THETRUSTEEFORKIRRIBILLIPROJECTUNITTRUST (the applicant) and the Department of Home Affairs (the Department), concerning the nomination of a position for a Café or Restaurant Manager (ANZSCO 141111). The dispute centred on whether the nominated position met the criteria for approval under migration regulations, specifically whether it was located in a limited service restaurant, which is an excluded category for this occupation.

The primary legal issue before the Tribunal was to determine if the applicant had provided sufficient evidence to satisfy the requirements of Regulation 2.72 of the Migration Regulations 1994, particularly concerning the inapplicability of the limited service restaurant exclusion to the nominated position. This required assessing whether the nominated occupation and its code corresponded to a specified occupation in the relevant instrument and whether the occupation was applicable to the identified person, taking into account any specific caveats.

The Tribunal found that the relevant instrument specified that the occupation of Café or Restaurant Manager is subject to an inapplicability condition if the position is in a limited service restaurant, which is defined to include various types of fast food, takeaway, fast casual, and limited service cafes. The Tribunal noted a lack of contemporary evidence demonstrating that the nominated position was not in a limited service restaurant. Despite being invited to provide information, the applicant failed to respond, and the Tribunal gave no weight to the outdated information on the Department's file. Consequently, the Tribunal affirmed the decision to refuse the nomination.