Flames (Aust) Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to refuse an employer nomination application for the position of Chef. The applicant, Flames (Aust) Pty Ltd, sought approval for a nomination under the Direct Entry stream, proposing to employ a Chef at a salary of $55,000 plus superannuation. The delegate had refused the application on the grounds that the applicant had not demonstrated that the nominated employee would be employed full-time in the position for at least two years, as required by regulation 5.19(4)(d)(i) of the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant had satisfied the criteria under regulation 5.19 of the Migration Regulations 1994 for the approval of the nominated position. Specifically, the Tribunal needed to assess if the applicant had provided sufficient evidence to satisfy the delegate, and subsequently the Tribunal, that the business had the financial capacity to employ the nominee for the required period, that the position was genuine, and that all other regulatory requirements were met. This involved examining the financial documentation provided by the business, including Business Activity Statements, financial statements, and bank records, as well as evidence relating to the genuine need for the position and attempts to fill it locally.

In its reasoning, the Tribunal considered the extensive documentation provided by the applicant, particularly after the initial request for further information. It found that the applicant's business, Tandoori Flames Indian Restaurant, was operating lawfully in a regional area of New South Wales. The Tribunal was satisfied that there was a genuine need for a Chef, as the owner was the sole chef and the position was critical to the business's viability. Furthermore, evidence indicated that the nominee had been employed in the position since August 2016 and that numerous attempts had been made to advertise and fill the role locally. The Tribunal also addressed other regulatory requirements, including satisfactory compliance with workplace relations laws and the absence of adverse information.

Ultimately, the Tribunal was satisfied that the applicant met the requirements of regulation 5.19 for the approval of the nomination. Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.