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

This matter concerned an application for approval of a nomination of a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The applicant, A S Randhawa Holdings Pty Ltd as the Trustee for A S Randhawa Investments Trust, sought to nominate Ms Lovepreet Kaur for the position of Cook at its restaurant in Jimboomba, Queensland. The dispute arose when the Department of Home Affairs refused to approve the nomination, a decision which the applicant sought to have reviewed by the Administrative Appeals Tribunal. The Tribunal, presided over by De-Anne Kelly, considered evidence relating to the applicant's financial capacity, the advertising of the position, and the scope of the "same local area" requirement.

The primary legal issues before the Tribunal were whether the applicant met the requirements for approval of the nomination under r. 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had the financial capacity to employ the nominee for at least two years, if the position could not be filled by an Australian citizen or permanent resident living in the same local area, and if adequate local advertising had been undertaken. The Tribunal also considered the weight to be given to unsupported anonymous allegations and the impact of various business challenges, including staff turnover, COVID-19 restrictions, and the principal's health, on the applicant's ability to meet the nomination requirements.

The Tribunal's reasoning focused on the applicant's failure to satisfy the requirement that the position could not be filled by a suitably qualified Australian citizen or permanent resident living in the same local area. While the applicant provided evidence of local advertising and advice from a regional certifying body regarding a shortage of suitable local workers, the Tribunal found this insufficient. The Tribunal also noted that unsupported anonymous allegations, even if presented via a s.376 certificate, were given no weight due to a lack of supporting evidence. The Tribunal affirmed the decision under review to refuse the nomination.