Empire Bay Service Station Pty Ltd (Migration)

This matter concerned an application by Empire Bay Service Station Pty Ltd for approval of a nominated position under the Direct Entry stream of the relevant migration regulations. The Tribunal was required to determine whether the applicant met all the requirements stipulated in regulation 5.19(4) for the approval of the nomination.

The primary legal issue before the Tribunal was whether the applicant had satisfied the various criteria outlined in regulation 5.19(4), including the application being in the approved form, identifying a genuine need for the nominated position, and that the position could not be filled by a locally resident Australian citizen or permanent resident. The Tribunal also considered whether the terms and conditions of employment were no less favourable than those offered to Australian workers, whether there was any adverse information known to Immigration, and whether the nominator had a satisfactory record of compliance with workplace relations laws.

The Tribunal's reasoning focused on assessing the evidence presented in relation to each sub-regulation. It found that the application was compliant, a fee was not payable as the position was in regional Australia, and there was a genuine need for a Retail Manager due to the complexity and 24-hour operation of the service station, which included a grocery store, takeaway food, newsagency, car wash, and ATM services. Evidence from the nominator and a recruitment agent demonstrated difficulties in filling the role with suitably qualified local candidates. The Tribunal was satisfied that the tasks of the position corresponded to an ANZSCO skill level 2 occupation and that the business and position were located in regional Australia. Furthermore, the Tribunal found that the terms and conditions of employment were favourable, no adverse information was known, and there was no evidence of non-compliance with workplace relations laws.

Consequently, the Tribunal was satisfied that the applicant met the requirements of regulation 5.19 for the approval of the nomination. The decision under review to refuse the nomination was set aside, and a substituted decision approving the nomination was made.