Charlie Bit Me Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an Employer Nomination Scheme visa application, subclass 186, Direct Entry stream, for the position of Chef. The applicant, Charlie Bit Me Pty Ltd, nominated Ms Diana Alejandra Neisa Nempeque for the role, which was to be based in Docklands, Victoria, with an annual salary of $60,000. The core dispute revolved around whether the nominated position represented a genuine need for employment under the direct control of the nominator, as required by migration regulations.

The Tribunal was tasked with determining if Charlie Bit Me Pty Ltd met the general requirements for approval of a nomination under regulation 5.19(4) of the Migration Regulations 1994, and the specific requirements for the Direct Entry stream under regulation 5.19(9). Key among these was whether there was a genuine need for the nominated Chef position and if the nominee would be under the direct control of the nominator. The Tribunal also considered requirements relating to the nominator's compliance with employment laws, the active and lawful operation of the business, and the nominee's qualifications and eligibility.

In its reasoning, the Tribunal found that Charlie Bit Me Pty Ltd had satisfied all the relevant regulatory requirements. The business, a café with Latin-infused food, demonstrated a genuine need for a Chef who could devise unique dishes, source ingredients, and manage the kitchen, particularly given the limitations of its small kitchen. The nominee, Ms Nempeque, was found to have the necessary skills and experience, having devised the restaurant's menu and demonstrated a comprehensive understanding of her role. The Tribunal was satisfied that the nominator had a satisfactory record of compliance with employment laws, was actively and lawfully operating its business, and that the nominated position was a genuine need under the direct control of the nominator.

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