Arish & Aleesa Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a decision by the Department of Home Affairs to refuse the approval of a nominated position. The applicant, Arish & Aleesa Pty Ltd, trading as 'Delicious Fingers' café in Melville, Western Australia, sought approval for a nominated position for a Cook (ANZSCO 351411). However, during the review process, the applicant's representative asserted that a mistake had been made in the online application and that the nominated position should have been Café or Restaurant Manager (ANZSCO 141111). The Tribunal also considered information received under a section 376 certificate, which alleged that the nominee had paid $50,000 for sponsorship and had not actually worked at the restaurant.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination under the Direct Entry nomination stream, as set out in regulation 5.19(4) of the Migration Regulations 1994. This involved determining if all the mandatory criteria for employer nominations were satisfied, including the genuine need for the position, the applicant's operational status, and the terms and conditions of employment. The Tribunal also had to consider the validity and impact of the section 376 certificate and the adverse information it contained.

The Tribunal affirmed the decision to refuse the nomination. It found that the applicant had not satisfied the requirements of regulation 5.19(4). While the applicant provided substantial documentation, including financial records and a job description, the Tribunal was not satisfied that the nomination met all the necessary criteria. The Tribunal noted that the applicant had not sought to satisfy the criteria under the Temporary Residence Transition Nomination stream, which was an alternative pathway. The adverse information, despite the applicant not making submissions on the validity of the section 376 certificate, was also a significant factor in the Tribunal's assessment.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination of the position.