Black Pepper Investments Pty Ltd ATF Deen Unit Trust (Migration)

This matter concerned an appeal by Black Pepper Investments Pty Ltd ATF Deen Unit Trust against a decision to refuse its Regional Employer Nomination (Permanent) (Class RN) nomination under the direct entry stream. The applicant sought to nominate Hemant Dhakla for the occupation of Accommodation and Hospitality Manager nec (ANZSCO 141999) for a position as Licensed Bar/Tavern Manager within their restaurant business, Deen Street BBQ, located in Northbridge, Western Australia. The core of the dispute was whether the nominated position and the applicant's business operations aligned with the requirements of Regulation 5.19(4)(h) of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant had satisfied the criteria under Regulation 5.19(4)(h) for a direct entry nomination. Specifically, the Tribunal was required to determine if the tasks of the proposed Licensed Bar/Tavern Manager position corresponded to those of an Accommodation and Hospitality Manager nec as defined by ANZSCO, and if the business itself met the requirements for regional operation and genuine need for the nominated role, as stipulated by subregulation (ii) of Regulation 5.19(4)(h).

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had failed to demonstrate that the duties of a Licensed Bar/Tavern Manager corresponded to the ANZSCO definition of an Accommodation and Hospitality Manager nec. The Tribunal noted that the applicant's business operated a restaurant with a bar but did not offer accommodation services, which was a key component of the nominated occupation. Furthermore, the Tribunal found that the applicant had not been afforded a fair opportunity to provide relevant information to address this discrepancy. Consequently, the Tribunal concluded that the applicant had not met the requirements of Regulation 5.19(4) of the Migration Regulations 1994.