ALI, ASHIQ (Migration)

This matter concerned an application for the approval of a nomination for a position as a Café and Restaurant Manager. The applicant, operating a restaurant named "786 Pakistani and Indian restaurant," sought approval for the nomination of Mrs. Poonam Sharma for this role. The delegate had previously not been satisfied that the business could financially support the nominee for at least two years and that the business was operating at a level consistent with the nominated position being genuine. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under section 140GB(2) of the Act and regulation 2.72 of the Migration Regulations 1994.

The Tribunal considered several legal issues, including whether the nominated occupation corresponded to a specified occupation under regulation 2.72(10)(aa), whether there was any adverse information known to Immigration about the applicant or associated persons under regulation 2.72(9), and whether the terms and conditions of employment for the nominee would be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work, as required by regulation 2.72(10)(c). The Tribunal also implicitly considered the genuine need for the employment and the financial capacity of the business to employ the nominee for the required period, as these were central to the delegate's previous concerns.

The Tribunal's reasoning focused on assessing the evidence against the relevant regulatory criteria. It noted the applicant's status as an approved standard business sponsor until February 2023 and reviewed the financial performance of the business, which showed a turnover of $647,200 and a profit of $72,431 in the 2018/2019 financial year, and a turnover of $720,541 with a profit of $126,268 in the 2019/2020 financial year. The Tribunal found that the nominated occupation, Café or Restaurant Manager (ANZSCO 141111), was specified in the relevant instrument. It also found no evidence of adverse information and that the proposed salary of $55,000 per annum plus superannuation for a 36-hour week met the "no less favourable" terms and conditions requirement. The Tribunal concluded that all applicable criteria for the nomination to be approved were met.

Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision approving the nomination.