Baciamo Le Mani Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered an application by Baciamo Le Mani Pty Ltd (the applicant) for approval of a nominated position under the Direct Entry stream of the relevant migration regulations. The dispute centred on whether the applicant had demonstrated a genuine need for the nominated position, specifically that of a Chef, and whether this need could not be met by an Australian citizen or permanent resident. The applicant operates a substantial restaurant business with two outlets in regional Victoria, employing a total of 19 staff, including six Chefs or Cooks.

The primary legal issue before the Tribunal was to determine if the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether there was a genuine need for the paid position under the nominator's direct control, which could not be filled by an Australian citizen or permanent resident, and whether the tasks of the position corresponded to an occupation at the required ANZSCO skill level. The Tribunal also considered requirements relating to the nominator's business operations, recruitment efforts, and compliance with workplace relations laws.

The Tribunal reasoned that the applicant had presented substantial evidence of its recruitment activities over a four-year period, utilising various recruitment channels including electronic job sites, local networks, print media, and an industry-specific agency. It acknowledged the significant challenges in recruiting and retaining suitably qualified Chefs in regional Victoria, noting that no Australian citizens or permanent residents were found to be suitably qualified for the role at the time of the visa applicant's employment. The Tribunal also observed the current state of the labour market, with a large number of vacancies in the field nationally and in Victoria, indicating a demand that often exceeds supply, particularly in regional areas. Having considered this evidence, the Tribunal was satisfied that the requirements of regulation 5.19(4)(h)(ii)(B) were met, concluding there was a genuine need for the nominated position that could not be filled locally.

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