Collins Restaurants West Pty Ltd (Migration)

This matter concerned an application by Collins Restaurants West Pty Ltd for approval of a nominated position under the Direct Entry nomination stream of the Regional Sponsored Migration Scheme. The applicant sought to nominate a position for a Retail Manager (General) for its Kentucky Fried Chicken (KFC) stores. The core dispute revolved around whether the duties and responsibilities of the nominated position were genuinely consistent with the occupation of Retail Manager, or if they more closely aligned with that of a Retail Supervisor, and whether there was a genuine need for the position.

The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess if the application was compliant, if the nominator was actively and lawfully operating a business, if the position was not labour-hire, and if the terms of employment met the specified duration and conditions. Crucially, the Tribunal also had to consider whether there was a genuine need for the nominee to be employed in the nominated position, whether the tasks of the position corresponded to an occupation specified in the relevant legislative instrument, and if the position could not be filled by a locally resident Australian citizen or permanent resident.

The Tribunal found that the applicant met all the preliminary requirements of regulation 5.19(4), including the application being in the approved form, the nominator actively operating a business, and the absence of labour-hire arrangements. It was also satisfied that the nominated position and the nominator's business were located in regional Australia, and that there was a genuine need for the nominee to be employed in the role, particularly given the difficulties in recruiting suitable staff for regional and remote locations. The Tribunal concluded that the tasks of the nominated position corresponded to an occupation specified in the relevant instrument and that the nominator had a satisfactory record of compliance with workplace relations laws.

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