MIGRATION - application for approval of nomination of position - medium-term stream - chef - genuine position - business sold after review application made and since closed by new owner - nominee stopped working for applicant when business sold, and visa dependent on outcome of this review - vague plans to open new restaurant business - no discretion on compassionate grounds - decision under review affirmed

Administrative Review Tribunal Act 2024 (Cth), s 79(1)

Migration Act 1958 (Cth), ss 140GB, 140GBA, 359A

Migration Regulations 1994 (Cth), rr 2.72(10)(a), (11), 2.73

1. This is an application for review of a decision made by a delegate of the Minister on 18 November 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, Thi Thanh Huyen Nguyen, is an individual/sole trader holding the Australian Business Number (ABN) 73 538 204 842. The applicant applied for approval of a nomination of the occupation, Chef (ANZSCO 351311),[1] for her Vietnamese restaurant business 'VSF Vietnamese Street Food' located in Subiaco WA on 26 September 2024.
3. 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.
4. The delegate decided not to approve the nomination because on the very limited evidence the applicant had provided in addressing the genuineness of the nominated position, the delegate was not satisfied that the position associated with the nominated occupation was genuine. Therefore, the delegate was not satisfied that the applicant satisfied reg 2.72(10).
5. On 29 November 2024, the applicant applied for review of the delegate's decision. The applicant was represented before the Department and in relation to the Tribunal review.
6. On 6 January 2026, the Tribunal gave directions, by an order made under s 79(1) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act), that the applicant provide specific information and documents in relation to the issue on review by 30 January 2026. On 8 January 2026, the Tribunal received written submissions from the applicant stating that the applicant's business has been sold after the review application to the Tribunal had been lodged and the applicant is no longer the business owner, but she wished to proceed with the review before the Tribunal.
7. On 16 January 2026, the applicant withdrew her authorisations for the representative to act as the authorised recipient and the representative in relation to the review.
8. The applicant appeared before the Tribunal on 30 January 2026 by video to give evidence and make submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
9. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. Relevantly in this case, reg 2.72(10)(a) requires that the position associated with the nominated occupation is genuine and reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement. In addition, reg 2.72(11) requires that the nominee will be engaged only as an employee under a written contract of employment for the applicant who is not an overseas business sponsor, or an associated entity of the applicant, and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument LIN 19/212. The nominated occupation of Chef is not specified in the relevant instrument. `
2. As noted above, the delegate was not satisfied the applicant met reg 2.72(10)(a). The delegate considered that there was no evidence for them to determine where the nominated occupation fits within the organisational structure of the business, that the nominee is not performing lower skill tasks and whether there is sufficient work for the nominee to work on a full-time basis in the nominated occupation. Therefore, the delegate was not satisfied the nominated position was genuine.
3. At the hearing, the Tribunal explained to the applicant that the Tribunal must look at all of the information before it afresh, including the latest information submitted by the applicant and her oral evidence at the hearing, and it does not have to make the same decision as the Department or decide the application on the same issue as the Department. In this regard, the Tribunal noted the applicant's recent submissions indicating that she has ceased to operate the sponsoring business where the nominated position was to be employed. The Tribunal explained its concern that based on this new information the genuine need for such a position associated with the nominated occupation did not appear to exist and that this was the critical issue for determination.
4. At the hearing, the applicant provided the following further information about the cessation of her business:
   • She sold her business 'VSF Vietnamese Street Food' to TD Vietnamese Street Food Pty Ltd on 25 March 2025. She did not personally know the purchaser company or the persons associated with the company including the director/owner. The business sale was organised and conducted through her accountant. She confirmed that the applicant has no relation, commercial or otherwise, to the purchaser company/new owner of the business.
   • After the sale, she assisted the new owner insofar as her name remained on the lease for the business premises at 139 Rokeby Road, Subiaco WA, until the lease expiration on 30 November 2025 because it was requested by the new owner.
   • However, the landlord for the business premises did not want to continue or renew the lease after the expiration of the lease in November. Therefore, the business had to close in around October 2025 and the new owner has to find a new location.
   • The nominee, Ms Thi Hong Ngoc Nguyen, has been working for flight catering services at Dnata at the airport from November 2025. She has not been working for the applicant since the applicant sold her business.
5. The Tribunal notes that publicly available information about the applicant's business corroborates the applicant's oral evidence at the hearing. Google search of 'VSF Vietnamese Street Food' provides that the business is 'permanently closed'.[2] The ABN Lookup record for the applicant's ABN shows that the registration for GST was cancelled on 13 September 2025,[3] indicating that the applicant has not been trading since September 2025.
6. At the hearing, I discussed the above information with the applicant under s 359A of the Act, explaining that I consider this information to be relevant because it indicates that the applicant's business and the nominated position of Chef do not currently exist and as such, the position associated with the nominated occupation is not required or genuine and is not a fulltime position, as required by reg 2.72(10) of the Regulations. Further, as the applicant herself has admitted that she is no longer operating the restaurant business, she is not engaging anyone, including the nominee in the position of Chef, as an employee under a written employment contract. Therefore, I may not be satisfied that the applicant meets reg 2.72(11) which requires the nominee to be engaged by the applicant or an associated entity of the applicant under an employment agreement.
7. The applicant conceded that the sponsoring business does not exist currently, she is not operating any restaurant business or engaging the nominee under an employment contract as her employee, and the nominee has been working for another company since November 2025. She explained her dream of owning and operating a Vietnamese restaurant in Australia ever since coming to Australia, her realisation of that dream when she opened VSF Street Food on 24 April 2023, her difficult personal circumstances at the time of the business sale, and that she would still like to open a restaurant in the future.
8. The Tribunal is sympathetic to the applicant's compassionate circumstances. The Tribunal also found the applicant to be a sincere and forthcoming witness who was concerned for the nominee whose related visa review is dependent on the outcome of this nomination review. However, as explained to the applicant at the hearing, the Tribunal must apply the law to the facts and evidence before it, and it does not have any discretion to make a favourable decision for the applicant or the nominee on compassionate grounds.
9. Based on the evidence and information before it, the Tribunal finds that the applicant's restaurant business in which the position associated with the nominated occupation of Chef was to be located has closed since October 2025 and therefore the nominated position does not exist and is not a fulltime position. Therefore, the Tribunal is not satisfied that the position associated with the occupation is genuine nor is it a full-time position as required by reg 2.72(10) of the Regulations.
10. The Tribunal is willing to accept that the nominee was working for the applicant under a contract of employment until the applicant sold her business in March 2025. The Tribunal accepts the applicant's frank evidence that the nominee has been working for Dnata since November 2025 and is presently not working at any Vietnamese restaurant business operated by the applicant or anyone else. The Tribunal accepts the applicant's evidence that it is not an associated entity of TD Vietnamese Street Food Pty Ltd or Dnata, or vice versa. The Tribunal has carefully considered the applicant's oral evidence, but it is not satisfied that the applicant has concrete plans to open a new restaurant business soon, nor her vague desire to open a new restaurant is supported by objective or independent evidence. Therefore, the Tribunal is not satisfied the nominee will be engaged only as an employee under a written contract of employment by the applicant or an associated entity of the applicant. The applicant does not meet reg 2.72(11).
11. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

1. The Tribunal affirms the decision not to approve the nomination.

Representative for the Applicant: Mr Jianpeng Wu (MARN: 2418450)

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 and New Zealand Standard Classification of Occupation (Australian Bureau of Statistics (2022), 3513 Chefs, ABS Website, accessed 2 February 2026).

[2] vsf street food subiaco - Google Search (accessed 30 January 2026).

[3] Historical details for ABN 73 538 204 842 | ABN Lookup (accessed 30 January 2026).