A S Randhawa Holdings Pty Ltd as the trustee for A S Randhawa Investments Trust (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision to refuse the nomination of a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The applicant, A S Randhawa Holdings Pty Ltd, as trustee for A S Randhawa Investments Trust, operates two restaurants and has associated entities operating two other restaurants. The dispute concerned the approval of a nomination for a Restaurant Manager position, which had been refused by the Department of Home Affairs.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the nominated position could not be filled by an Australian citizen or permanent resident living in the same local area, and whether the applicant had adequately demonstrated genuine efforts to recruit locally. The Tribunal also considered evidence relating to the business's operational needs, staff turnover, the principal's health, and the impact of COVID-19 restrictions.

The Tribunal affirmed the decision to refuse the nomination. It found that while the applicant provided extensive documentation, including advertisements and evidence of staff turnover, it had not sufficiently demonstrated that the position could not be filled by a local Australian citizen or permanent resident. The Tribunal noted that some advertisements provided were for positions other than the nominated one, and that the applicant's explanations for not being able to fill the role locally, such as high staff turnover and the need for skilled individuals in a fine-dining environment, were not conclusive in meeting the regulatory requirements. The Tribunal also considered the advice from the regional certifying body but found it was not determinative. The Tribunal's reasoning focused on the applicant's failure to satisfy the specific criteria under subregulation 5.19(4)(h)(ii)(C), which requires proof that the position cannot be filled by a local Australian.