1514013 (Migration)

This matter concerned an application for approval of a nomination for a position under the Direct Entry stream of the *Migration Regulations 1994* (Cth). The applicant, Saturno’s Admin Pty Ltd atf Saturno’s Employment Trust, sought approval for a nominated position of Café or Restaurant Manager for the Mile End Hotel. The delegate had refused to approve the nomination, finding that the applicant had not met several requirements of Regulation 5.19(4). The Tribunal was required to determine whether the applicant satisfied all the criteria for the approval of the nomination.

The Tribunal considered whether the applicant met the requirements of Regulation 5.19(4)(a), which mandates that the application be in the approved form, accompanied by the prescribed fee, and identify a need for a paid employee to work in a position under the nominator's direct control. The Tribunal also examined Regulation 5.19(4)(b), which requires the nominator to be actively and lawfully operating a business in Australia. Further, the Tribunal assessed Regulation 5.19(4)(h), which outlines alternative requirements for the nominated position, including whether it is located in regional Australia, whether there is a genuine need for the position, if it can be filled by a local Australian citizen or permanent resident, and if the tasks correspond to a specified ANZSCO skill level.

The Tribunal found that while the Mile End Hotel was operated by a separate legal entity, the applicant, as the employer of staff for the Saturno Group of companies, had the ability to hire, fire, and place staff, which was sufficient to demonstrate direct control over the nominated position. The Tribunal accepted that the applicant was actively and lawfully operating a business in Australia by providing staff to related hotels. Regarding Regulation 5.19(4)(h), the Tribunal was satisfied that the position was located in regional Australia, there was a genuine need for a Café or Restaurant Manager, and that the position could not be filled by a local Australian citizen or permanent resident, given the applicant's documented difficulties in attracting and retaining suitable staff. The Tribunal also found the tasks corresponded to ANZSCO skill level 2.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.