TURKISH KEBAB AND PIZZA SHOP PTY LTD (Migration)

This matter concerned an appeal by Turkish Kebab and Pizza Shop Pty Ltd against a decision to refuse its nomination. The nominator, a standard business sponsor, operates a Turkish food business in Canberra that offers eat-in, takeaway, catering, and delivery services. The nominated occupation was "Café or Restaurant Manager". The Tribunal, presided over by Member Alan McMurran, was required to determine whether the nominated occupation corresponded to a specified occupation as required by the relevant migration instrument.

The central legal issue was whether the nominated occupation, "Café or Restaurant Manager," corresponded to an occupation and its associated 6-digit code as specified in the relevant instrument, IMMI 17/060, which was in force at the time of the nomination application. This instrument defined a "limited service restaurant" by five criteria, including a "limited service cafe" and a "limited service pizza restaurant." The Tribunal had to assess if the nominator's business operations fell within these definitions and if the nominated occupation was applicable to the person identified in the nomination according to the instrument.

The Tribunal reasoned that the nominator's business, despite offering some catering and delivery, primarily operated as a small, casual cafe-style restaurant specialising in Turkish food. It did not hold a liquor licence and catered for small functions. The Tribunal found that the business's operational characteristics aligned with the definition of a "limited service restaurant" as outlined in the instrument, specifically fitting the description of a "limited service cafe" or "limited service pizza restaurant." Consequently, the Tribunal concluded that the nominated occupation did not correspond to a specified occupation under the relevant instrument, as required by subclause 2.72(10)(aa) of the Migration Regulations 1994. The Tribunal affirmed the decision not to approve the nomination.