MIGRATION - nomination of a position - Short-term stream - occupation of Cook - limited-service café - standardized menu format with limited preparation - full table service - sushi train or conveyor belt system - decision under review set aside

Migration Act 1958 (Cth), s 140

Migration Regulations 1994, Schedule 2, cl 482.223; rr 2.72, 2.73

1. This is an application for review of a decision made by a delegate of the Minister on 28 March 2024 to refuse to approve the applicant's nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
2. The applicant applied for approval on 5 March 2024. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r 2.72(8) because the delegate was satisfied that the applicant is a limited-service café and as a result considered that the nominated position is affected by a restriction specified in the relevant legislative instrument.
4. Mr Atsushi Kato appeared before the Tribunal by videoconference on 26 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.
5. The applicant was represented in relation to the review.
6. For the following reasons, the Tribunal has decided to set aside the decision under review and remit the matter for reconsideration.

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination.

1. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made. The occupation must also apply to the nominee in accordance with the instrument.
2. The applicant stated in the nomination application form submitted to the Department that the nominated occupation is Chef, with the corresponding ANZSCO code of 351311. As noted by the delegate, the Tribunal is satisfied the nominated occupation is subject to the applicability conditions as specified in the instrument.
3. As set out in the delegate' decision record, the delegate noted that the nominated position is Cook and noted the relevant instrument specifies that this position is not applicable where the position is in a limited-service venue. The delegate stated that they considered the relevant supporting documentation provided by you including but not limited to the menu, position description, organization chart, photos of the business and a written statement, but found that the specified restriction applies to the nominated position.
4. The delegate noted that a 'limited-service restaurant' is defined in the instrument as

a) a fast food or takeaway food service; > > b) a fast casual restaurant; > > c) a drinking establishment that offers only a limited food service; > > d) a limited-service cafe, including a coffee shop or mall cafe; > > e) a limited-service pizza restaurant.

5. The delegate noted that the business known as 'Sushi Train', operates through a chain or franchise agreement. The delegate referred to excerpts from the business's website demonstrating the franchise arrangement.
6. The delegate noted that under Departmental policy, if a food service business operates through a chain or franchise arrangement, it is possible that some outlets will be fast food or takeaway businesses while others are cafes or restaurants. As a result, the delegate further noted that they had assessed this criterion on 'a case-by-case basis.'
7. The delegate stated that in this situation the delegate ensured that the supporting evidence provided, relates to the specific outlet that is the subject of the nomination, rather than another premises in the chain.
8. The delegate noted that the submission attached to the application indicates that the position is based at South Port - Shop 16, Mercato on Ferry, Cnr Ferry Rd & Meron St, Southport, QLD 4215.
9. The delegate considered that as per the business website:

'all ingredients for Sushi Train restaurants are supplied from a central kitchen in each state... highly qualified sushi chefs then transform the ingredients into a dish of great quality.'

1. The delegate noted that under policy, fast food or take away food is defined as food that is quick to cook or is already cooked and as a result can be served as a quick meal or to be taken away, that is 'a meal to go.' The delegate noted that such food is to be distinguished from a restaurant or café where people sit and eat meals that are cooked and served on the premises, pay on completion of the meal and with the service provided being an important factor, as well as the food. The delegate stated that examples of eating establishments considered under policy to provide fast food or takeaway services may include, but are not limited to, fast food chains, fish and chips shops, hamburger shops, kebab shops, takeaway sushi shops, Asian noodle take away shops and fried chicken shops.
2. The delegate considered the applicant's submission that the owner intended to open a new shop in February 2024 but in the absence of any supporting evidence regarding the specific outlet, the delegate was not satisfied that that would also not be a limited-service restaurant.
3. The delegate considered the menu, with more than 100 items and the sushi 'conveyor belt' that operates for consumers to purchase food. The delegate considered that it indicated that the business does offer streamlined, or a limited menu prepared according to a standardized format with limited preparation.
4. The delegate, having considered all the information available to them both publicly and in written submissions, found the applicant to be a limited-service venue and as a result was satisfied that the position is in a limited-service restaurant.
5. The Tribunal asked Mr Kato at hearing what he would like to say regarding the delegate's concerns as expressed.
6. Mr Kato told the Tribunal that he disagreed with the delegates findings because the business is a restaurant that offers full table service. Mr Kato submitted that when customers enter the restaurant, they are greeted by wait staff who take them to a table and take their order. Mr Kato stated that there is a QR code available on each table for ordering however the wait staff are trained and told to try to sell the recommended menu each day so they will go and talk to the seated customers regardless of how the customer ends up deciding to order.
7. Mr Kato confirmed that all tables are situated around the 'sushi train.' Mr Kato submitted that all food items are prepared and cooked from the central kitchen, and that all food items are made from raw ingredients. Mr Kato told the Tribunal that although the business is a franchise, the sponsoring business has permission to create its own original menu items. Mr Kato states that all franchises have some standard menu items, and some that are created by the individual restaurant.
8. Mr Kato gave detailed evidence regarding the nominee's duties in the nominated position of Cook. Mr Kato stated that the nominee receives the stock that is delivered each morning, which includes fish that is delivered whole. The nominee then guts, fillets and slices the fish and prepares it for sushi and sashimi before the restaurant opens for service. Mr Kato stated that this fresh fish is the main ingredient in the restaurant and that preparing it for sashimi and sushi requires technical skill of a trained Cook or Chef. Mr Kato stated that the nominee trains other kitchen staff in these skills. Mr Kato stated that there are also other menu items that require the nominee to prepare food items so that they can be used to cook various dishes throughout the day.
9. The Tribunal asked Mr Kato what percentage of food is prepared earlier and served on the 'sushi train' such as sushi, and what percentage is prepared and cooked as the customer orders it. Mr Kato estimated that 70% of the food items sold each day are prepared and cooked to order. Mr Kato stated that only selected, popular items are prepared in advance and placed on the 'sushi train'. Mr Kato stated that a significant volume of orders are made from the table through wait staff, and raw food such as sashimi is not placed on the conveyor to ensure freshness.
10. Mr Kato told the Tribunal that the 'sushi train' or conveyor does not mean that the restaurant is a fast food or limited-service venue. Mr Kato submitted that it is a part of Japanese culture and part of the entertainment for the customer's dining experience, not a means to serve food 'to go' in a quick way.
11. The Tribunal found Mr Kato's oral testimony to be significantly detailed, candid and therefore reliable. The Tribunal accepts his submissions and places favourable weight on them. The Tribunal notes that photos of current menu items were provided to the Tribunal on review. The Tribunal notes that the food items are substantially detailed dishes with several components demonstrating several preparation and cooking techniques. The Tribunal places significant favourable weight on this evidence to find that the applicant is operating as a full-service restaurant. The Tribunal does not share the delegate's concern that this is a limited-service restaurant given the labour-intensive dishes it offers and the high-level of skill required by the nominee and other staff to do so. Further, the Tribunal relies on the ability of the restaurant to design its own menu items separate to other franchisees which further reflects the skills required of the nominee to design new dishes. The Tribunal considers that all this evidence negates the delegate's concern that this restaurant serves dishes that are pre-prepared, quick to cook and then taken away. The evidence shows that most customers dine in, with full table service and order meals that are freshly prepared and cooked with a significant degree of skill. Mr Kato told the Tribunal that customers will usually make payment at the end of their meal with the wait staff, which is also consistent with a full-service restaurant experience.
12. The Tribunal has considered the delegate's concern regarding the 'sushi train' or conveyor belt system for delivering food and their comment that it indicated that the business offers a streamlined, or limited menu prepared according to a standardised format with limited preparation. The Tribunal strongly disagrees with this assessment and agrees with Mr Kato that this is a part of Japanese culture that restaurants are entitled to incorporate as part of their culture without it being reduced to a limited-service venue. In reality, sushi establishments without a 'sushi train' and offering only over the counter, pre-prepared sushi and hand rolls are more likely to be fast food establishments and limited-service venues than those with a 'sushi train' in place, given its presence is specifically to enhance the experience for its dine in customers. The Tribunal considers that 'kaiten-zushi' restaurants have dated back to the 1950s and its existence in Japanese restaurants and culture has continued to evolve both in Japan and worldwide. The Tribunal considers it a charming attraction for customers and that it adds to the dine-in experience rather than reducing it to a takeaway venue. Considering the amount of preparation that goes into the dishes and that all items are made from raw ingredients, the Tribunal considers it somewhat culturally insensitive to dismiss the 'sushi train' as demonstrative of a fast food or limited-service venue.
13. The Tribunal, having regard to the totality of the evidence provided, including the photographs of the venue showing the capacity seated diners, photographs of the kitchen space and equipment required to prepare and cook complex dishes from raw materials, the copy of the menu offered, testimony regarding the ordering and front of house processes, significant volume of sales and turnover generated to find that this is not a limited-service café or restaurant.
14. For these reasons the requirements of reg 2.72(8) are met.
15. For the reasons given above, the Tribunal is satisfied that the applicant meets reg 2.72(8) for the nomination. Accordingly, the decision under review will be set aside and remitted for reconsideration.

1. The Tribunal sets aside the decision not to approve the nomination and remits the matter for reconsideration in accordance with the order that the nomination meets the following criteria: reg 2.72(8).

Representative for the Applicant: Mr Hideki Shimizu

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

(1) This regulation applies in relation to a person who:

(a) is any of the following:

(i) a standard business sponsor;

(ii) a person who has applied to be a standard business sponsor;

(iii) ...

(iv) ...

(b) under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;

(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

(2) For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

(3) The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

(a) there is no adverse information known to Immigration about the person or a person associated with the person; or

(b) it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

(a) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream - the person is a standard business sponsor; or

(b) ...

(5A) The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

(a) a Subclass 457 (Temporary Work (Skilled)) visa; or

(b) a Subclass 482 (Temporary Skill Shortage) visa;

the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

(7) However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

(a) the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream - the instrument made under subregulation (9) in force at the time the nomination is made; or

(ii) ...; and

(b) the occupation applies to the nominee in accordance with the instrument or work agreement.

(9) The Minister may, by legislative instrument, specify occupations and, for each occupation:

(a) whether the occupation is:

(i) a short term skilled occupation; or

(ii) a medium and long term strategic skills occupation; and

(b) either:

(i) the 6-digit ANZSCO code for the occupation; or

(ii) if there is no 6-digit ANZSCO code for the occupation - a 6-digit code for the occupation; and

(c) if there is no 6-digit ANZSCO code for the occupation - tasks, qualifications and experience for the occupation; and

(d) any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

(i) the person who nominated the occupation;

(ii) the nominee;

(iii) the occupation;

(iv) the position in which the nominee is to work;

(v) the circumstances in which the occupation is undertaken;

(vi) the circumstances in which the nominee is to be employed in the position.

(10) The Minister is satisfied that the position associated with the occupation is:

(10A) However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the person is not an overseas business sponsor; and

(c) the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

(d) the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

(e) the person will give the Minister a copy of the contract signed by the employer and the nominee.

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the person is an overseas business sponsor; and

(c) the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

(d) the nominee will be engaged only as an employee under a written contract of employment by the person; and

(e) the person will give the Minister a copy of the contract signed by the person and the nominee.

(13) The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) ...

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

(c) the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

the person has provided evidence to the Minister that the nominee satisfies:

(d) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream - any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

(e) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream - any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the Minister is not satisfied that the nominee's annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

(c) the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

(d) the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

(e) the nominee's annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

(f) the nominee's annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

(g) either:

(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

(ii) it is reasonable to disregard any such information.

(a) the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

(ii) it is reasonable in the circumstances to do so; and

(aa) the Minister may disregard the criterion in paragraph (15)(e) if:

(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and

(b) the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

(17) The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

(18) If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

(a) either:

(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii) it is reasonable to disregard any such information; and

(b) if the person is lawfully operating a business in Australia - the person has not engaged in discriminatory recruitment practices.