MIGRATION - application for approval of nomination of position - medium-term stream - head chef - genuine position - tasks of position compared with nominated occupation - nominee's work in role and position of role within business structure - significant business growth - skills shortage in sector and regional areas - designated area migration agreement and labour market testing - decision made without hearing necessary - decision under review set aside and remitted

Administrative Review Tribunal Act 2024 (Cth), ss 9(a), (b), 106(1), (3)(a), (b)(i), 79(1)

Migration Act 1958 (Cth), ss 140GB, 140GBA, 348A

Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73

Cargo First Pty Ltd v MIBP [2016] FCA 30

EIZ20 v Child Support Registrar [2023] FedCFamC2G 637

1. This is an application for review of a decision made by a delegate of the Minister on 5 July 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 28 June 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 Medium-term stream.
3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(a) in that the position associated with the nominated occupation is not genuine.

1. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. The decision and statement of reasons is made by the Tribunal.

1. Subsections 9(a) and 9(b) of the Administrative Review Tribunal Act 2024 (the ART Act) specify that the Tribunal's objective is to provide an independent mechanism of review of government decisions that is fair, just, ensures that applications are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits.
2. Further, the circumstances in which the Tribunal may reach a decision without a hearing in respect of a reviewable decision is set out in s 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). Section 106(1) provides that the Tribunal may make its decision in the proceedings in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of the subsections (2) to (5) are applicable.
3. Section 106(3) of the ART Act states that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the proceedings or hearing of the proceeding are the applicant and the non-participating party, the applicant requests the Tribunal to make its decision without holding a hearing or the decision is wholly in favour of the applicant, and the Tribunal is satisfied the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
4. The Tribunal has before it a copy of the Department's file. In addition, on 24 November 2025, by order made under s 79(1) of the ART Act, the Tribunal directed the applicant to provide the following information by 8 December 2025:
   1. information about the applicant's financial circumstances;
   2. information about the genuine need for the position and the applicant's current organisational structure and where the nominated position sits in relation to that structure;
   3. information about the history of the Chef role within the business, including recruitment efforts, whether the role was previously occupied and reasons why it became vacant before the nominee was employed in the role;
   4. information and evidence of any business growth to justify the need for a full-time Chef position.
5. Upon request, the Tribunal provided the applicant with an extension of time until 18 December 2025 to provide the above information. The applicant complied with the orders by providing all requested information by 18 December 2025.
6. On the basis of the above information and relevant criteria in ss 106(3)(a) and 106(3)(b)(i) being met, I am satisfied that the only parties to the proceeding are the applicant and a non-participating party. Section 348A of the Act stipulates that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision for the purposes of the ART Act. I note that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Citizenship. I am also satisfied that the matter of whether the applicant meets the requirements of reg 2.72(10)(a) of the Regulations can be adequately determined wholly in the applicant's favour without holding a hearing.
7. According to EIZ20 v Child Support Registrar, it is for the Tribunal to decide whether an application can be adequately determined without holding a hearing.[1] In carrying out its duties, the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues in a review application.
8. In this matter, I am satisfied that the applicant has been given an opportunity to provide additional information and evidence. The information provided by the applicant has allowed the Tribunal to make a decision wholly in the applicant's favour without holding a hearing.
9. 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. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.

1. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal's approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
2. The delegate was not satisfied that the evidence provided with the nomination application demonstrated that the nomination was lodged to fill a genuine skill shortage, but rather to facilitate the grant of a visa for the nominee. The delegate referred to checks being conducted in relation to the nominee's immigration history and noted that the nominee had spent a substantial period in Australia, raising concerns about their intentions to abide by the temporary nature of the visa program.
3. In response to the Tribunal's orders, the applicant provided the following information:
   1. Financial statements for year ended 30 June 2024;
   2. Trust tax returns for years ending 2024 and 2025;
   3. Business Activity Statements for years ending 2024 and 2025;
   4. Letters from the applicant's accountants confirming turnover, net profit, payroll tax, wages and salaries, superannuation and net current assets for the financial years ending 2024 and 2025;
   5. Analysis of food sales from 2020 to 2025;
   6. Organisation chart;
   7. Approval of Designated Area Migration Agreement (DAMA) labour agreement request and copy of SA Regional DAMA Labour Agreement;
   8. Nomination approval for another employee under the Chef ANZSCO occupation. Employee reports to the nominee;
   9. Letter from the applicant's Director addressing the history of the Chef role, recruitment efforts and reasons why the role became vacant before the nominee was employed in the role along with supporting evidence (22 December 2017 Facebook post welcoming former Head Chef, genuine position statement submitted on 11 February 2025 for the approved position of Demi Chef, Sales Comparison for 2024 to 2025 financial years and DAMA South Australian Regional Workforce Agreement endorsement dated 16 December 2025 for a Café or Restaurant Manager position).
4. The applicant's organisation chart places its Director / Owner in the most senior position which oversees the overall operations of the business. Reporting to the Director / Owner are the Head Chef (nominated position), Food and Beverages Manager and Event Coordinator. Specifically under the Head Chef role is a team consisting of a Demi Chef and two Commis Chefs. Based on this information, I am satisfied that the business' structure provides for a clear delineation of roles and that the Head Chef role fits within the structure.

6. Data and information provided in relation to the business' food sales show sales in 2022 exceeding $230,000. In 2023, food sales increased significantly to over $570,000. In both 2024 and 2025, each year has seen food sales exceed $630,000. The business' financial statements show total sales of $1,660,762.97 as at 30 June 2025, contrasted against sales of $1,576,694.05 just two years prior. The business' sales projection for 2026 has been set at $1,742,000 which is based on the average of total sales for the last three years, and adding on five per cent. Based on the financial information provided, I accept that the business has seen an upward trend in food sales and has enjoyed strong financial growth, meaning that it has been able to justify the need for a Chef role and that it also has the capacity to support the role.
7. The applicant has provided a significant amount of evidence which outlines the shortage of Chefs throughout Australia and that such shortages are more pronounced in regions such as South Australia. Due to the shortage of Chefs and other workers in the hospitality industry in South Australia, the business has entered into a DAMA, a rigorous process which also requires the business to provide evidence of its labour market testing efforts. The applicant provided an outline of its recent recruitment campaign which saw the business receive 204 applications for an advertised Chef role. Of those candidates, the majority had no relevant experience, were applying from overseas and/or were holders of a temporary visa. The remainder of the candidates were not suitable due to a lack of relevant skill set and/or qualifications, unrelated employment experience, applying from overseas and/or were holders of a temporary visa.
8. Specific to the nominated position which was filled in 2021 by the nominee, the applicant stated that prior to hiring the nominee, the Head Chef position was occupied by four other individuals respectively. The business commenced operations in 2002 and the position of Head Chef came into existence in October 2007. When the position became vacant in 2021 due to the resignation of the Head Chef at the time, the business advertised the Chef role on SEEK in January 2021. Through an appropriate merits-based process, the nominee was shortlisted, interviewed and successfully appointed to the position of Chef in January 2021, before being promoted to the position of Head Chef in November 2021. The nominee also holds a positive skills assessment outcome from VETASSESS in the occupation of Chef (Commercial Cookery).
9. Further, I have also taken into consideration Movement Records from the Department of Home Affairs indicating that the nominee has been in Australia since 29 December 2016, and that he has held a number of temporary Australian visas, including two Student (subclass 500) visas, a Temporary Graduate (subclass 485) visa and a Temporary Activity (subclass 408) visa. I note that the nominee had a legal right to apply for these temporary visas. I note that there is no evidence before me to indicate that the applicant has created the Chef position to secure a migration outcome for the nominee. The information provided by the applicant shows a clear history of the role, as well as evidence of previous Head Chefs employed by the business. While I accept that the applicant has been in Australia for an extended period of time, I give more weight to the applicant's evidence of having made a purely commercial decision to create and maintain the position of Head Chef which is crucial for its operations, and notably difficult to recruit for in regional centres. I accept that the applicant has nominated the position of Head Chef in order to fill a genuine vacancy, rather than to facilitate the stay of the nominee in Australia.
10. On the basis of the business' financial growth, customer demands, business needs, recruitment efforts and regional location, I am satisfied that the applicant has demonstrated a need to employ a full-time Chef in their business.
11. For the reasons given above, the Tribunal is satisfied that the applicant meets reg 2.72(10)(a) 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 must be taken to have met the following criteria for approval under s 140GB(2) of the Act:
   • Reg 2.72(10)(a) of the Regulations.

Representative for the Applicant: Mr Kym Handberg (MARN: 214353)

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.

[1] EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 (20 July 2023).