Banta Singh Holdings Pty Ltd AFT The Banta Singh Family Trust (Migration)

The case concerned an application by Banta Singh Holdings Pty Ltd AFT The Banta Singh Family Trust for the approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant operates four Subway franchise stores and a recently established Indian restaurant in regional Victoria. The nominated position was for a Retail Manager (General) at the Leongatha Subway store. The primary dispute revolved around whether the applicant had demonstrated a genuine need for this position, particularly given that the business had been operating without a manager for over three years, and the difficulties encountered in securing suitably qualified and experienced staff in regional Victoria, exacerbated by the COVID-19 pandemic. The matter was heard by Amanda Mendes Da Costa.

The legal issues before the Tribunal were whether the applicant met all the requirements for the approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the application was compliant, if the nominator was actively and lawfully operating a business, if the position was not a labour hire arrangement, if the terms of employment met the required standards, if there was no adverse information known to Immigration or if such information could be disregarded, if the nominator had a satisfactory record of compliance with workplace relations laws, and crucially, if there was a genuine need for the nominated position and if its tasks corresponded to an occupation specified in the relevant legislative instrument, particularly in the context of a regional business.

The Tribunal found that the applicant met all the requirements of regulation 5.19(4). It was satisfied that the application was compliant, the business was actively and lawfully operating, and the position was not for labour hire. The proposed salary was within the market range, and the terms of employment were no less favourable than those for an Australian worker. The Tribunal also found no adverse information that could not be disregarded and that the applicant had a satisfactory record of workplace relations compliance. Critically, regarding the genuine need for the position, the Tribunal accepted the evidence that the applicant's growing business activities, coupled with the increased commitments of the directors, particularly with the opening of a new restaurant, left them with insufficient time to manage their individual businesses, including the Leongatha store. The difficulties in recruiting and retaining staff in regional Victoria, and the impact of COVID-19, further supported the genuine need for a full-time manager. The tasks of the nominated position were found to substantially correspond to those of a Retail Manager (General) as defined by ANZSCO 142111, and the business was located in regional Australia, with a Regional Certifying Body having provided the necessary advice.

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