Elegant Beauty & Brows Pty Ltd (Migration)

The Administrative Appeals Tribunal considered an appeal by Elegant Beauty & Brows Pty Ltd (the applicant) concerning the approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant sought to nominate a Beauty Salon Manager position, but the Department of Immigration and Border Protection refused to approve the nomination. The Tribunal's primary task was to determine whether the applicant had complied with the relevant legislative requirements for such a nomination.

The central legal issue before the Tribunal was whether the applicant had satisfied regulation 5.19(4)(h)(ii)(C) of the Migration Regulations 1994, which requires that the nominated position "cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place." This regulation necessitates a genuine and transparent process to ascertain that no suitable local Australian candidates are available.

The Tribunal reasoned that the wording of regulation 5.19(4)(h)(ii)(C) imposes an obligation on the applicant to actively investigate whether an Australian citizen or permanent resident could fill the position. This investigation must be genuine, and the Tribunal considered that an additional element of transparency is required when the applicant has already employed or earmarked a candidate, as was the case here. The Tribunal noted that while the legislation does not prescribe specific methods for this investigation, common recruitment practices such as newspaper and internet advertising, engaging recruitment agencies, or attending employment symposiums could be employed. In this instance, the applicant had placed newspaper and internet advertisements for the Beauty Salon Manager position, but these advertisements failed to specify the salary or salary range, and no candidates were interviewed, with the nominee being the successful applicant.

Ultimately, the Tribunal affirmed the decision to refuse the nomination. The Tribunal found that the applicant had not demonstrated a genuine and transparent process to satisfy the requirement that the position could not be filled by a local Australian citizen or permanent resident. The lack of salary information in the advertisements and the absence of interviews with any potential Australian candidates led the Tribunal to conclude that the applicant had not met the criteria under regulation 5.19(4)(h)(ii)(C).