Bisa Hotels Pty Ltd (Migration)

This matter concerned an application by Bisa Hotels Pty Ltd for approval of a nomination under the Direct Entry nomination stream. The core of the dispute revolved around whether the nominated position, that of a Conference and Event Coordinator, met the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994. The Tribunal was tasked with determining if all mandatory criteria for the nomination’s approval had been satisfied by the applicant.

The legal issues before the Tribunal included whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, and if the nominated position was not a labour-hire arrangement. Further, the Tribunal had to consider the term of employment for the visa holder, whether the terms and conditions were no less favourable than those offered to local workers, and if there was any adverse information known to Immigration. Crucially, the Tribunal was required to assess if the applicant had a satisfactory record of compliance with workplace relations laws and, under regulation 5.19(4)(h), whether the tasks of the position corresponded to a specified occupation, there was a genuine need for the employee, and specific training requirements were met, or alternatively, if the position was located in regional Australia, there was a genuine need, it could not be filled locally, the tasks corresponded to a specified occupation, and a regional certifying body had provided advice.

The Tribunal reasoned that the applicant had met all the requirements of regulation 5.19. It found that the application was made in the approved form, accompanied by the prescribed fee, and identified a genuine need for a paid employee under the nominator’s direct control. The evidence demonstrated that Bisa Hotels Pty Ltd was actively and lawfully operating a hotel in Canberra, trading as East Hotel, and had provided sufficient financial documentation to support this. The Tribunal also determined that the position was not a labour-hire arrangement and that the terms of employment would be no less favourable than those for an Australian worker. Furthermore, there was no adverse information known to Immigration, and the nominator had a satisfactory record of compliance with workplace relations laws. Critically, the Tribunal found that the nominated position, being located in regional Australia, satisfied the alternative requirements of regulation 5.19(4)(h)(ii), including a genuine need for the employee, the inability to fill the position locally, and correspondence of tasks to a specified occupation, with the necessary advice from a regional certifying body.

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