Two Siblings Pty Ltd atf Latra Trust (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered an application by Two Siblings Pty Ltd atf Latra Trust (the applicant) for review of a decision by the Department of Home Affairs to refuse approval of a nominated position for a Cook. The applicant sought to sponsor a visa for an overseas worker, but the Department had refused to approve the nominated position on the basis that the applicant's restaurant did not meet the criteria for a "limited service restaurant" as defined in the relevant migration regulations. Specifically, the Department found that the restaurant, which had seating for between 30 and 50 patrons and a full commercial kitchen on site using fresh raw ingredients, did not qualify as a limited service restaurant.

The primary legal issue before the Tribunal was whether the applicant's restaurant, as described, met the definition of a "limited service restaurant" for the purposes of the employer nomination provisions under the *Migration Regulations 1994* (Cth). This involved an interpretation of the regulatory definition, which specifies certain criteria regarding seating capacity and the nature of the food service. A secondary issue arose concerning whether the applicant could rely on an international trade obligation, specifically the Free Trade Agreement between Australia and Hong Kong, China (A-HKFTA), to overcome the refusal, particularly in relation to labour market testing requirements.

The Tribunal found that the applicant's restaurant did not fit the definition of a "limited service restaurant" as it operated a full commercial kitchen using fresh raw ingredients, which was inconsistent with the limited service model contemplated by the regulations. However, the Tribunal determined that the applicant was able to rely on the A-HKFTA. The Tribunal reasoned that the A-HKFTA, by its terms, provided for certain exemptions from labour market testing for Hong Kong service providers, and that the applicant's business, as a provider of restaurant services, fell within the scope of these provisions.

Consequently, the Tribunal set aside the Department's decision and substituted a new decision approving the nominated position.