Arish & Aleesa Pty Ltd (Migration)

The case of Arish & Aleesa Pty Ltd (Migration) concerned a review of a decision regarding the approval of a nominated position for a Cook under the Direct Entry Nomination stream. The applicant, Arish & Aleesa Pty Ltd, sought to have the decision under review set aside and substituted with a decision approving the nomination.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, if there was a genuine need for the nominated position, and if the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident. The Tribunal also considered whether there was any adverse information known to Immigration about the nominator or associated persons, and if so, whether it was reasonable to disregard such information.

The Tribunal found that the applicant had met the requirements of regulation 5.19(4). It was satisfied that the application was in the approved form, accompanied by the prescribed fee, and identified a genuine need for a paid employee to work under the nominator's direct control. The Tribunal accepted the evidence that the nominator was actively and lawfully operating a business and had the financial capacity to employ a Cook. Crucially, the Tribunal determined that adverse information, which alleged the applicant had accepted payment from a previously nominated employee to secure sponsorship, was not to be considered. This was because the Tribunal found a certificate purporting to cover this information to be invalid, and further, that the documentary and oral evidence before it was inconsistent with the allegations. The Tribunal concluded that it was reasonable to disregard the adverse information.

Consequently, the Tribunal set aside the decision under review and substituted a decision approving the nomination.