DIWALI PTY LTD (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a nomination under the Direct Entry stream. The applicant, Diwali Pty Ltd, sought approval for a nomination for the position of Restaurant Manager, with Mrs Brar identified as the nominee. The core of the dispute revolved around whether Diwali Pty Ltd met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of this nomination.

The Tribunal was required to determine if the application was compliant, if the nominator was actively and lawfully operating a business in Australia, if the nominated position was not related to labour hire, if there was no adverse information known to Immigration, and if the nominator had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal also had to assess whether the position and business were located in regional Australia, if there was a genuine need for the nominee to be employed under the nominator's direct control, if the position could not be filled by a local Australian citizen or permanent resident, and if the tasks of the position corresponded to an occupation specified in the relevant legislative instrument.

The Tribunal found that Diwali Pty Ltd had lodged the correct form with the prescribed fee and had certified compliance with section 245AR(1). Evidence, including ASIC records and tax returns, satisfied the Tribunal that the business was actively and lawfully operating in South Australia, which is considered regional Australia. The Tribunal was also satisfied that there was a genuine need for the Restaurant Manager role, that recruitment efforts had failed to secure a suitable local candidate, and that the duties aligned with the specified occupation. Furthermore, no adverse information was presented, and the nominator had a satisfactory compliance record. A Regional Certifying Body had also advised the Minister that the requirements were met.

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