Bengal Business Pty Limited ATF Grier Trust & Hudson Trust & Picone Trust (Migration)

The case involved an application by Bengal Business Pty Limited ATF Grier Trust & Hudson Trust & Picone Trust for approval of a nomination for a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream. The nominated position was Assistant General (Restaurant) Manager, to be filled by Ms Kelsey Jacquelyn Simmons. The applicant, trading as Harvest Café, sought to employ Ms Simmons at their premises in Newrybar, NSW, with an annual salary of $60,000. The decision was made by De-Anne Kelly, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the general requirements for approval of the nomination under regulation 5.19(4) and the specific requirements for the Direct Entry stream under regulation 5.19(9) of the Migration Regulations 1994. This involved assessing whether the nominated position corresponded to a specified occupation, whether there was a genuine need for the employee, whether the nominator was actively and lawfully operating a business, and whether employment laws had been complied with, among other criteria.

The Tribunal found that the applicant satisfied all relevant requirements. It was satisfied that the tasks associated with the nominated position of Assistant General (Restaurant) Manager corresponded to the specified occupation. The Tribunal accepted the evidence presented by the applicant's General Manager, Mr. Tuckett, that there was a genuine need for the position due to staff shortages and the need for managerial oversight in the restaurant's day-to-day operations, including training, quality control, and financial management. The Tribunal was also satisfied that Harvest Café was actively and lawfully operating as a business in Australia, despite facing challenges during the COVID-19 pandemic and recent floods. Furthermore, there was no evidence of non-compliance with employment laws, and no mandatory licensing or registration requirements applied to the nominated occupation in New South Wales.

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