FG & A Investments Pty Ltd (Migration)

This matter concerned an application for approval of a nomination for a position under the Direct Entry nomination stream, specifically for a Cook. The applicant relied on evidence provided to the Tribunal, including written submissions and supporting documentation previously submitted to the department. The nominating entity operated a restaurant in a popular coastal suburban location in South Australia. The visa applicant possessed relevant formal qualifications and extensive experience aligning with the duties of a Cook (ANZSCO 351411, Skill level 3).

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. This involved making findings of fact on disputed material matters, including assessing the genuineness of the employment need, the adequacy of the recruitment process, the terms and conditions of employment, and compliance with relevant legislative requirements. The Tribunal was required to consider the challenges in recruiting and retaining suitably experienced staff in specialist, modestly paid roles, particularly in regional locations, and the impact of COVID-19 restrictions on the business.

The Tribunal reasoned that the nominating entity had demonstrated a genuine need for the position and had undertaken a fair and honest recruitment process, utilising various advertising channels and personal networks, despite facing a limited talent pool. It was satisfied that the salary package offered, while in the mid to lower quartiles for similar roles, met the requirement of being no less favourable than what would be provided to an Australian citizen or permanent resident. The Tribunal also found that the nominator had a satisfactory record of compliance with workplace relations laws and that there was no adverse information known to Immigration. Furthermore, the Tribunal was satisfied that the position and business were located in regional Australia and that there was a genuine need for the position that could not be filled by an Australian citizen or permanent resident.

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