EMIRATES HOTELS (AUSTRALIA) PTY LIMITED (Migration)

This matter concerned an application by Emirates Hotels (Australia) Pty Limited for approval of a nomination under the Direct Entry nomination stream for the occupation of Commis Chef. The original decision by the Department refused the nomination application. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was 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 considered whether the nominator had provided a written certification regarding conduct contravening section 245AR(1) of the Act, whether the nominator was actively and lawfully operating a business in Australia, whether there was a genuine need for the nominated position, and whether the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents for equivalent work.

The Tribunal found that the applicant had provided the required written certification to the Tribunal, satisfying regulation 5.19(4)(a). It was also satisfied that the nominator was actively and lawfully operating a business in Australia, had a satisfactory record of compliance with workplace relations laws, and that there was no adverse information known to Immigration. Crucially, the Tribunal determined that the position was located in regional Australia and that there was a genuine need for the nominated position, evidenced by the resignation of a previous chef and the nominee's continuous employment for nearly four years. The Tribunal also considered the job description provided, which outlined tasks consistent with the nominated occupation.

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