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

This matter concerned an application by A S Randhawa Holdings Pty Ltd as the Trustee for A S Randhawa Investments Trust for approval of a nomination for a Cook position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The applicant operated two restaurants, with associated entities operating two others, and sought to nominate a foreign worker for a position at its Jimboomba restaurant. The core of the dispute revolved around whether the applicant had made sufficient efforts to recruit an Australian citizen or permanent resident for the nominated position, and whether it possessed the financial capacity to employ the nominee for two years.

The Tribunal was required to determine if the applicant had met the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the genuine need for the nominated position and the applicant's efforts to recruit locally. This involved assessing the scope of the "same local area" for advertising purposes, the adequacy of the advertising undertaken, and the applicant's financial capacity. The Tribunal also considered the impact of various factors, including staff turnover, COVID-19 restrictions, and the principal's health issues, on the business's ability to recruit and retain staff.

The Tribunal's reasoning focused on the evidence presented regarding the applicant's recruitment efforts. While the applicant provided extensive documentation of advertisements placed for various positions across its restaurants, the Tribunal found that these advertisements did not consistently demonstrate a genuine and sustained effort to recruit within the specific local area of Jimboomba. The Tribunal noted that some advertisements were placed in broader regions, and the recruitment summaries provided did not always establish that suitable local candidates were unavailable. Furthermore, the Tribunal considered the applicant's financial statements, which indicated profitability, but the primary focus remained on the failure to satisfy the local recruitment requirements. The Tribunal also addressed the applicant's submission regarding the principal's health and business pressures, acknowledging these factors but concluding they did not override the failure to meet the essential nomination criteria.

Ultimately, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal found that the applicant had not discharged its onus to demonstrate that it had made all reasonable efforts to recruit an Australian worker for the nominated position, nor had it sufficiently established a genuine need for the overseas worker in the context of the available local labour market.