TOOWOOMBA HONG KONG RESTAURANT PTY LTD (Migration)

This matter concerned an appeal by Toowoomba Hong Kong Restaurant Pty Ltd against a decision to refuse its nomination application. The applicant, a corporation with three directors who were also shareholders, sought to nominate an individual for a position as a café and restaurant manager. The restaurant, which had been operating since 2010, had ceased operations and was closed at the time of the application. The core of the dispute revolved around whether the nominator was actively operating a business and had a genuine need for the nominated employee.

The legal issues before the Tribunal were whether the nominator’s proposed nominee’s position was substantially similar to the ANZSCO classification of Café and Restaurant Manager, whether the business identified a need to employ a paid employee in that position, whether the nominator was actively and lawfully operating a business in Australia, and whether the employee would be employed full-time for at least two years. The Tribunal was required to assess the evidence presented by the nominator regarding its ability to resurrect the business, secure premises, recruit staff, and sustain the employment of a manager for the requisite period.

The Tribunal reasoned that the applicant was not actively operating a business, as it had been closed for a significant period. Furthermore, the Tribunal found that there was no demonstrable need for a café and restaurant manager because the business itself did not exist in an operational capacity. Crucially, the Tribunal was not satisfied that the applicant could sustain the employment of a manager for two years, citing a lack of evidence demonstrating how the business could generate income to cover the salary. The Tribunal noted that steps suggested for reopening had not been taken in the three years since the initial refusal, and a late submission of a potential loan offer and investor bank statement did not sufficiently address the concerns about the business's viability and ability to generate income.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination application. The Tribunal concluded that the applicant failed to satisfy the requirements under the relevant regulations, specifically concerning the active operation of a business, the identified need for the nominated position, and the capacity to employ the nominee for the required duration.