Coober Pedy Roadhouse Pty Ltd ATF CHRIS PANTELIS FAMILY OTHERS (Migration)

This matter concerned an appeal by Coober Pedy Roadhouse Pty Ltd ATF CHRIS PANTELIS FAMILY OTHERS against a decision to refuse the approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The dispute centred on whether the nominated position of Retail Store Manager could be filled by an Australian citizen or permanent resident. The case was heard by Stavros Georgiadis, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically subregulation (h)(ii)(C), which mandates that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area. The Tribunal was required to determine if the advertisement for the position, which specified regular working hours of 10:00 am to 6:00 pm, Monday to Friday, adequately demonstrated a genuine attempt to recruit locally or if these hours unduly limited the pool of potential applicants.

The Tribunal affirmed the decision to refuse the nomination. It found that while the applicant had advertised the position on SEEK.com and the nominee had responded and been interviewed, the specific working hours stipulated in the advertisement were problematic. The Tribunal reasoned that by limiting the hours to a standard 9-to-5, Monday-to-Friday schedule, the advertisement may have inadvertently restricted the pool of eligible Australian candidates who might have been available for work outside these specific hours, or who might have sought different arrangements. Consequently, the Tribunal was not satisfied that the applicant had demonstrated that the position could not be filled by a local Australian citizen or permanent resident, and therefore the nomination could not be approved.