BT Tavern Pty Ltd (Migration)

This matter concerned an application by BT Tavern Pty Ltd for approval of a nomination for a position under the Direct Entry stream of the Regional Sponsored Migration Scheme (RSMS) visa subclass 187. The nomination was for the position of Restaurant Manager, to be filled by Ms Manpreet Kaur. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nomination satisfied the criteria for approval under regulation 5.19(4), specifically concerning the genuine need for the position, the applicant's compliance with workplace relations laws, and the absence of adverse information known to the Department of Home Affairs. The Tribunal also considered the validity of a section 375 Certificate which raised concerns about the applicant's previous migration agent, and procedural matters relating to a late request for access to documents and a subsequent request for recusal of the Tribunal member.

The Tribunal found that the applicant had a genuine need for the position of Restaurant Manager, particularly given the difficulty in attracting skilled staff in the regional area where Braidies Tavern is located. The Tribunal was satisfied that the business was located in a designated regional area and that the tasks of the position corresponded to an occupation specified in the relevant legislative instrument. Furthermore, the Tribunal found no evidence of unsatisfactory compliance with workplace relations laws and no adverse information known to the Department about the nominator. Crucially, the Tribunal placed no weight on the section 375 Certificate, noting that the employers were unfamiliar with the migration process and may not have been aware of or party to any alleged fraud by their previous agent, instead relying on the forthright and transparent evidence provided by the employer, Mr Taylor.

The Tribunal decided to set aside the original decision under review and substitute a decision approving the nomination.