Baba Tung Pty Ltd (Migration)

This matter concerned an application by Baba Tung Pty Ltd for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The dispute centred on whether the terms and conditions of employment for the nominated position of Café or Restaurant Manager, and the evidence of the recruitment process, met the requirements of the Migration Regulations 1994. The Administrative Appeals Tribunal was required to determine if the nomination should be approved.

The Tribunal was tasked with determining whether the applicant satisfied all the requirements of regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal needed to assess whether the salary offered for the position was equivalent to that provided to Australian citizens or permanent residents for similar work, whether there was a genuine need for the position that could not be filled locally, and whether the nominating entity had demonstrated sufficient recruitment efforts, including advertising, to attract suitable candidates to a regional location.

The Tribunal found that the nominating entity, operating a substantial restaurant business in regional Western Australia, faced significant challenges in recruiting and retaining qualified management staff, particularly during the COVID-19 pandemic. Evidence of the salary determination indicated that the remuneration fell within the mid-to-upper quartiles for similar positions in the region. The Tribunal also accepted the evidence of the nominator's recruitment processes, including proof of advertising in 2016 and 2018, and acknowledged the difficulties in finding suitable talent in regional areas. The Tribunal was satisfied that the terms and conditions of employment were no less favourable than those offered to Australian workers in equivalent roles and that there was a genuine need for the position that could not be filled locally.

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