C&G FAMILY PTY LTD (Migration)

The case involved C&G Family Pty Ltd, the applicant, seeking approval for a nomination for a Temporary Skill Shortage visa (Subclass 482) for the nominated position of Restaurant Manager. The dispute arose when the Minister’s delegate decided not to approve the nomination. The matter was heard by Deputy J.L. Redfern PSM in a tribunal setting.

The primary legal issue before the court was whether the applicant met the criteria for the approval of the nomination, specifically concerning Regulation 2.72 of the Migration Regulations 1994. This included determining if the nominated position was genuine, if labour market testing requirements were met, and crucially, whether it was reasonable to disregard any adverse information known to Immigration about the applicant or associated persons, as stipulated in Regulation 2.72(4).

The court reasoned that the nomination application itself complied with the prescribed processes and contained the necessary details regarding the occupation, nominee, location, and proposed period of stay. The court then addressed the adverse information, which stemmed from an audit finding that the applicant had unintentionally underpaid two workers, including the nominee, and had provided misleading PAYG summaries and Notices of Assessment. However, the court found that the underpayments were unintentional and had been rectified. Furthermore, the court concluded that the evidence regarding the PAYG summaries and Notices of Assessment being false or misleading was not sufficiently established, particularly in relation to the nominee's Notice of Assessment, which appeared genuine and for which the Australian Taxation Office's response of "no records" might have been an error.

Consequently, the court found that the applicant met all applicable criteria for the nomination to be approved. The decision of the delegate not to approve the nomination was set aside, and a substituted decision approving the nomination was made.