MIGRATION - approval of nominated position (employer nomination) - Subclass 482 - failed to fully comply with directions to submit requested information - forthcoming witness - all necessary information now provided - genuine position - full-time position - matched tasks and duties of nominated position - most suitable candidate - sponsorship monitoring for wage underpayment - now ensures strict compliance with all Australian employment laws and sponsorship requirements - decision under review remitted

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

Migration Regulations 1994 (Cth), rr 2.72, 2.73

Cargo First Pty Ltd v MIBP [2016] FCA 30

1. This is an application for review of a decision made by a delegate of the Minister on 4 September 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 of the nomination for the occupation of Café or Restaurant Manager on 8 April 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 reg 2.72(10)(a) because the delegate was not satisfied the position associated with the nominated occupation to be genuine, having regard to the available evidence.
4. My John Little, the director of the applicant, appeared on behalf of the applicant before the Tribunal on 29 January 2026 by video to give evidence and present arguments. The applicant was represented in relation to the review, but the representative did not attend the hearing.
5. 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 one of the criteria for approval of the nomination, namely reg 2.72(10).
2. As noted above, the delegate was not satisfied that the position associated with the nominated occupation was genuine. The delegate in their decision noted that the information available before the Department lacked adequate and tenable evidence, including a detailed organisation chart or independently verifiable financial documents and information regarding the tasks performed by employees at the time of the assessment, to demonstrate that there was a legitimate requirement of the nominated position in the business. As such, the delegate considered that there were not sufficient details to justify the need for a Café or Restaurant Manager in the applicant's business and was not satisfied that the position was genuine to meet the requirement of reg 2.72(10)(a).
3. The Tribunal has considered all of the written material in the Departmental file and the material received by the Tribunal to date. The material relevantly includes:

a) The applicant's nomination application submitted on 8 April 2024; > > b) A copy of the employment contract dated 2 April 2024 between the applicant and the nominee, Ms Niamh O'Hara, in the position of Restaurant Manager, executed on 5 April 2024, and a copy of the job description for Restaurant Manager at 'Fibber McGee's'; > > c) A genuine position statement dated 9 May 2024, in response to the Department's request for further specific information on 6 May 2024; > > d) The applicant's submissions to the Tribunal on 11 December 2025 in compliance with the Tribunal's order dated 19 November 2025, including various web screenshots of the restaurant information, lunch and dinner menus and Google search and review summary, an organisation chart and a list of employees as at 6 December 2025 employed by the applicant, an extract of profit and loss statement for July 2023 to June 2024, a copy of financial statement for the year ended 30 June 2025 and payroll advice for the nominee from 1 November 2025 to 6 December 2025; and > > e) Recent payslips for the nominee (for the period between 27 December 2025 and 23 January 2026) submitted after the hearing.

4. The Tribunal notes that it is regrettable that despite being represented by a migration agent from the beginning of the nomination process and being given multiple opportunities to provide specific documentary material in support of the application, the applicant failed to fully comply with the comprehensive directions to submit the requested information. For example, the delegate had clearly indicated in their request for information dated 6 May 2024 that the applicant provide independently verifiable financial documents, organisation chart and information relating to whether the position has been newly created and who has been undertaking the tasks of the position. However, the only document the applicant provided in response was a 'Genuine Position Statement' dated 9 May 2024 which provided generic information about the number of staff, operation hours and that minimum 2 Restaurant Managers were required to cover peak business hours, without any independent supporting material. Similarly, despite the Tribunal specifically directing the applicant to explain why the applicant's business requires 2 Restaurant Managers in addition to a General Manager and the clear division of actual tasks and duties performed by existing restaurant staff supported by work examples, the applicant's submissions on 11 December 2025 lacked this specific information and largely repeated the 'Genuine Position Statement' dated 9 May 2024.
5. Due to the written information being insufficient for the Tribunal to determine the issue on review, the Tribunal considered a hearing was required. The Tribunal acknowledges that Mr Little was a forthcoming witness who was able to provide the necessary information and explanations orally in detail. Mr Little's oral evidence as well the written information before the Tribunal is referred to below, where relevant.

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 applicant operates an Irish Pub and Steakhouse restaurant called 'Fibber McGee's' in Leederville, Western Australia. The restaurant was established by Mr Little and has been in operation since 1998. Mr Little submitted at the hearing that he has been in the hospitality management business for 60 years all over the world including 40 years in Australia. Fibber McGee's provides upmarket food specialising in dry aged beef and stock reduction, techniques that are not used in most restaurants, sourcing ingredients from an organic farm. The food served in the pub section of the premises is same as the restaurant, and with a private function room, the restaurant can cater up to 200 people. The restaurant/kitchen hours are Monday to Tuesday: 12PM-3PM and 5PM-9PM, Wednesday to Thursday: 11:30AM-3PM and 5PM-9PM, Friday: 11:30AM-3:30PM and 4:30PM-9:30PM, Saturday: 11AM-3:30PM and 4:30PM-9:30PM, and Sunday 11AM-4PM and 5PM-9PM.
3. The applicant submits that as at 5 December 2025, it employs 28 staff consisting of:

a) 1 General Manager, Mr Little, who oversees overall venue management; > > b) 2 full-time Restaurant Managers, currently occupied by temporary visa holders including the nominee who report to the General Manager; > > c) 7 casual wait staff, currently occupied by 6 Working Holiday visa holders and 1 Australian, who report to the Restaurant Managers; > > d) 1 full-time Head Chef, who is an Australian permanent resident and reports to the General Manager, and 4 full-time Chefs, reporting to the Head Chef and currently occupied by 2 temporary visa holders and 2 Australians; > > e) 6 casual Kitchen Hands who are Student visa holders and report to the Chef on duty; > > f) 2 casual Bar Managers, who are Working Holiday visa holders and report to the General Manager, and 5 casual bar staff occupied by 1 Australian and 4 Working Holiday visa holders.

4. In relation to the majority of the current staff being foreign citizens, Mr Little frankly spoke of the applicant's historical difficulties hiring and retaining Australian employees who often did not turn up to the interviews or left after a short trial. Mr Little claimed that recent immigrants were more hardworking, loyal and stayed with his business longer. The nominee started working in his business as a casual waitress around pre-Covid 2021 when she was on a Working Holiday visa. She was eventually promoted to supervisor and then to Restaurant Manager. She was suitable for the role because she had the work experience, educational qualification in hospitality and an approved manager licence.
5. Mr Little submitted that the business has always had 2 Restaurant Managers including an Australian who had worked in his business for 14 years. When the Australian employee retired to have a child and the other fulltime Restaurant Manager also resigned, Mr Little needed to train the current position holders including the nominee to ensure consistent running of the business.
6. Mr Little described his role as the General Manager as more of a managing director who gives directions remotely and does not deal with the day-to-day business. He submitted that he is now in his 70s and is not involved in hands-on management but leaves everything to his 2 Restaurant Managers to run the daily business. The casual Bar Managers' role is distinct also because they are required to be behind the bar to run drinks service and are sometimes given directions by the Restaurant Manager on shift. Because the restaurant is open 7 days for lunch and dinner services, Mr Little stated that the 2 Restaurant Managers organise the 5-day shifts between them, ensuring that each gets 2 days off during the weekdays, that both are on premises on weekends during which the applicant has the highest volume of business and that there is an approved manager present at all times throughout all service hours.
7. The Tribunal has considered the additional updated information and Mr Little's detailed oral evidence that were not available to the delegate when they rejected the nomination application for not meeting reg 2.72(10)(a).
8. Having regard to the totality of the material before it, the Tribunal is satisfied that Mr Little on behalf of the applicant has persuasively explained the operational need of the position associated with the nominated occupation (i.e. Restaurant Manager), supported by the applicant's current organisational chart and staff list illustrating the nominated position's fit within the business, and financial documents clearly demonstrating the scale and capacity of the applicant's business. The Tribunal finds that the applicant has satisfactorily explained the genuine need for the nominated position within the applicant's current business organisational structure.
9. The Tribunal is also satisfied on the information before it that the tasks of the nominated position align with the tasks of the nominated occupation, 141111 Café or Restaurant Manager, as described in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).[1] In particular, Mr Little at the hearing detailed the nominee's tasks and responsibilities including overseeing restaurant service and customer handling, bar and wait staff rostering, casual front-of-house staff recruitment, stock ordering and maintenance, liaising with the chefs regarding menu, customer requests and private functions, specific customer liaison regarding reservations, catering and events/function organisation, and payments handling. The Tribunal is satisfied that these include a majority of the ANZSCO listed tasks for the nominated occupation of Restaurant Manager.
10. In light of all of the above, the Tribunal is satisfied that the position associated with the nominated occupation of Restaurant Manager is a genuine position in the applicant's business. The Tribunal accepts that the position has been occupied by the nominee on a fulltime basis to meet the applicant's business need and that the nominee has been performing the duties and responsibilities of the nominated occupation.
11. Based on the available information before the Tribunal including the employment contract for the nominee and records of wages payments by the applicant to the nominee, the Tribunal is satisfied that the nominated position of the Restaurant Manager in the applicant's business is a fulltime position. At the hearing, Mr Little confirmed that the nominated position is a permanent fulltime position with ordinary hours of work being 38 hours per week and any additional overtime accrued as time-in-lieu. Mr Little also frankly disclosed that he had been subject to sponsorship monitoring for wage underpayment in the past and as such, he ensures strict compliance with all Australian employment laws and sponsorship requirements to never repeat that terrible experience again.
12. For the above reasons, the Tribunal is satisfied that the position associated with the occupation is genuine and a full-time position. Accordingly, the applicant meets the requirements of reg 2.72(10) and 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 applicant meets reg 2.72(10) of the Migration Regulations 1994 (Cth).

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] Australian Bureau of Statistics (2022), 1411 Cafe and Restaurant Managers, ABS Website, accessed 19 January 2026.