Decision: The Tribunal sets aside the decision under review and remits the application for reconsideration, in accordance with the order that the nomination meets the following criteria:

• reg 5.19(4)(f) and reg 5.19(9)(d) of the Regulations

MIGRATION - approval of a nomination - Direct Entry stream - occupation of Chef - genuine position - evidence of labour market testing - updated financial information - employment contract - tasks of the position correspond to nominated occupation - assisting and relieving the Head Chef - decision under review set aside and remitted

Administrative Review Tribunal Act 2024 (Cth), ss 79, 106

Migration Act 1958 (Cth), ss 140, 348

Migration Regulations 1994, rr 5.19, 2.72, 2.73

1. This is an application for review of a decision made by a delegate of the Minister on 18 June 2024 to refuse to approve the applicant's nomination under 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
2. The Applicant applied for approval on 23 June 2023. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval set out in reg 5.19(4), then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
3. For nominations under the Direct Entry stream, reg 5.19(4)(f) requires that the requirements set out in sub regulation (9) be met.
4. In this case, the Applicant has applied for approval of a nomination for the occupation of Chef (ANZSCO 351311), seeking to satisfy the criteria in the Direct Entry stream. The nomination application was lodged in favour of Mr Jefferson Manes Alves.
5. The delegate decided not to approve the nomination on the basis that the applicant did not provide any supporting evidence of their claim, such as the scale of the business activities, details about the proposed position, and financial evidence about the business and any growth to support the need for the nominated position. The delegate could therefore not be satisfied that the requirements of reg 5.19(9)(d) could be met, in particular that there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator, and therefore it could not meet the requirements of reg 5.19(4)(f).
6. On 3 July 2024, the applicant applied for review of the delegate's decision to the Tribunal and provided a copy of the delegate's decision record with the review application. The applicant was represented in relation to the review.
7. On 31 October 2024, the applicant lodged documents with the Tribunal as follows:
   1. A letter to the Tribunal explaining that the supporting documents were not lodged with the application to the department due to a technical error.
   2. ASIC current and historical extract dated 23 June 2023
   3. Seek invoice dated showing Job Title Sous Chef dated 1 June 2023
   4. Evidence of market salary testing
   5. Letter from Finance Manager for Melbourne Greyhounds dated 18 May 2023, confirming annual turnover of business was $5,014,207 and gross expenditure on salaries and wages was $1,450,000 for the June 2021 - June 2022 financial year, and confirming that the applicant has the financial viability to meets its sponsorship requirements.
   6. Annual report for the Melbourne Greyhound Racing Association for 2021-2022. The Chairman's report includes a statement that, "With dining numbers continuing to grow, hospitality staff shortages are an ongoing issue for the performance of our new city View Bistro."
   7. Food and menu photos, photos of promotional material and dining/conference packages, kitchen photos, dining room photos,
   8. Employee contract dated 19th June 2023 between Melbourne Greyhounds and Jefferson Alves for fulltime sous chef for commencement of employment on 21st June 2023;
   9. Genuine need for position statement dated June 2023;
   10. MVA Bennett signed audit report for the year ended 30 June 2022;
   11. Statement of financial position for the year ended 30 June 2022 showing revenue of $5,014,207 and expenses of $5,003,460 with a profit before income tax of $10,747. The statement shows the position for the previous year, ending 30 June 2021 as $3,776,430 revenue, $3,088,753 expenses and $687,677 profit before tax.
   12. Organisational chart for the applicant
   13. Position Description for Sous Chef.
   14. Business activity statements (BAS) for the periods April 2022 - June 2022, July 2022 - September 2022, Oct 2022 - Dec 2022, Jan 2023 - Mar 2023,
   15. Letter to the department referring to attached supporting documents, dated 23 June 2023.

1. After reviewing the file including the additional material filed by the applicant in compliance with the directions, the Tribunal considers that s 106(3) of the ART Act applies and for the reasons set out below, it can proceed to a decision without holding a hearing of the proceeding.
2. Section 106(3) applies if the only parties to the proceedings are the applicant and non-participating party; the decision is wholly in favour of the applicant; and it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties to the proceeding.
3. The only parties to the proceeding in this case are the applicant and the Minister who is a non-participating party[1]. Accordingly, s 106(3) (a) is satisfied.
4. The Tribunal has considered all of the documents and things given to it and available before it. The relevant material before the Tribunal includes:
   1. The Departmental file including the nomination application form and the Department's decision.
   2. The Tribunal file, including all the documents referred to at paragraph 5.
5. The issue in this case is whether the Applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9). For the nomination to be approved, all the requirements must be met. Having reviewed the available material in this matter, I consider that the issue for determination in the proceedings can be adequately determined in the absence of the parties to the proceeding, and that for the reasons set out below, the decision is wholly in favour of the applicant. Accordingly, I find s 106(3)(b)(i) and s 106(3)(c) are satisfied and I have decided to proceed with a decision without a hearing.
6. For the following reasons, the Tribunal has decided to set aside the decision under review and remit the matter for reconsideration.

1. Regulation 5.19(9)(d) requires the nomination application to identify a there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator.
2. The applicant was represented in relation to the review.
3. The applicant's business is a Greyhound racing club which the applicant submits hosts over 1000 races annually. Within the business is a restaurant and a conference and events centre named 'The Meadows'. This facility offers an a la cart menu across a 6-day trading week, and the conference and events centre caters for a wide range of events including wedding, celebrations, memorials, conference and meetings. The restaurant and events facilities offer collective seating for 350 patrons.
4. The applicant has provided significant submissions and evidence about the genuineness of the position and that it is a full-time role, that has been brought about satisfy a genuine need for a full-time sous chef to effectively assist the Head Chef in planning, organising, recruiting and leading the food preparation function, as well as preparing and cooking dishes to meet workload demand. The nominated role has come about because a chef must be present at all times to manage the food preparation across the applicant's restaurant and events venues over a 6-day trading week. With only the Head Chef employed in a permanent capacity, there is a genuine need to secure a full-time and permanent Sous Chef to assist and relieve the Head Chef in planning, managing and directing the food preparation function over both venues across long trading hours over a 6-day week. The applicant has provided evidence of the various menus as well as conference dining packages.
5. The applicant has provided a current organisational chart showing the role is situated within a clearly defined organisational structure. Consistent with the applicant's submissions, the chart shows that it reports to the Head Chef and sits above casual hospitality staff. Based on the evidence provided, the nominated position fits within the regular and ongoing business activity of the applicant's restaurant and functions facility.
6. The applicant has also provided evidence that the role was advertised on Seek.com and Jora.com for 30 days from 18 May 2023. They received 34 applications, none of which were shortlisted as they lacked the necessary qualifications or experience for the position.
7. The applicant has provided a copy of the employment contract between the nominee and the applicant and based on that evidence I am satisfied that the nominee will be employed under the direct control of the applicant under an employer/employee relationship.
8. The applicant has provided evidence of the duties of the position in the position description for the role. The responsibilities of the role are stated as:
   • Input into menu creation and execution
   • Contribution to daily Kitchen management
   • Rostering and scheduling support
   • Understanding menu costing, planning & development
   • Assisting with the kitchen cleaning schedule, kitchen maintenance and repairs
   • Input into kitchen layout and logistics, including suggestions on equipment purchasing and repairs
   • Resourcefully solve any issues that arise and seize control of any problematic situation
   • Maintain a positive and professional approach with coworkers and customers
9. ANZCO code provide the tasks of a chef as follows[2]:
   • planning menus, estimating food and labour costs, and ordering food supplies
   • monitoring quality of dishes at all stages of preparation and presentation
   • discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
   • demonstrating techniques and advising on cooking procedures
   • preparing and cooking food
   • explaining and enforcing hygiene regulations
   • may select and train staff
   • may freeze and preserve foods

Based on the evidence I am satisfied that the nominated person will be performing the majority of the duties of chef set out in the ANZSCO code.

1. On 26 February 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 to the Tribunal updated financial statements for the business by 12 March 2026.
2. On 11 March 2026 the applicant provided the following information:
   1. Current and historical company extract for the Melbourne Greyhound Racing Association, dated 11 March 2026;
   2. Pay slips for Jefferson, Manes Alves for the periods 9.2.2026 to 22.02.2026, and 26.01.2026 to 08.02.2026, showing an annual salary of $71,415.
   3. Australian Taxation Office Commonwealth Essential Superannuation Statement for the nominee from 1 July 2018 to 31.01.2026.
   4. Current organisational chart, including position of Sous/2nd chef.
   5. Melbourne Greyhound Racing Association 2024/2025 and 2023/2024 Annual reports.
   6. Letter from Chief Executive Officer confirming Jefferson Manes Alves is currently an employee of the Melbourne Greyhound Racing Association in the role of Sous/2nd Chef in a full-time capacity, dated 4 March 2026;
   7. Income statements for the nominee from 1 July 2022 to 22 February 2026;
   8. Enclosing letter addressed to the Tribunal dated 11 March 2026.
3. The applicant has provided evidence regarding its financial capacity to support the nominated position. The applicant's annual report for the year ended 30 June 2025 showed revenue of $14,430,645 and expenses of $6,561,457. The report also shows a total equity of $27,590,281 in its consolidated statement of financial position, and cash and cash equivalents at the end of the financial year of $16,334,082.
4. Based on the available evidence, I am satisfied that the applicant is in an overall financial position to support the nominated position.

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 criteria for approval under reg 5.19(4)(f) and reg 5.19(9)(d) of the Regulations.

Representative for the Applicant: Mr Phillip Knell (MARN: 1173015)

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] Section 348A(1) of the Act provides that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act.

[2] Australian Bureau of Statistics (2022), 1336 Supply, Distribution and Procurement Managers, ABS Website, accessed 26 February 2026