FN 63 Pigs PTY LTD (Migration)

The matter before the Tribunal concerned an application by FN 63 Pigs PTY LTD for the approval of a nominated position under the Direct Entry stream of the employer nomination provisions. The applicant operates a Hogs Breath restaurant in Mooloolaba and had nominated a Café or Restaurant Manager. The core dispute revolved around whether the applicant met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of this nomination.

The Tribunal was required to determine if the applicant satisfied each of the criteria set out in regulation 5.19(4). These included whether the application identified a genuine need for a paid employee under the nominator's direct control, if the nominator was actively and lawfully operating a business in Australia, and if the nominated position was not a labour-hire arrangement. Further, the Tribunal had to assess whether the proposed employment term met the minimum duration and allowed for extension, if the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents, and if there was no adverse information known to Immigration concerning the nominator or associated persons. Finally, the Tribunal needed to consider the nominator's compliance with workplace relations laws and whether the tasks of the position met the genuine need and training benchmark requirements, particularly in light of the position being located in regional Australia.

In its reasoning, the Tribunal systematically addressed each subregulation of 5.19(4). It found that the application was in the approved form and fee, and that the business's operating hours necessitated at least two restaurant managers, thus establishing a genuine need. The Tribunal accepted that the applicant was actively and lawfully operating a business and that the position was not a labour-hire arrangement. The provided employment contract confirmed a full-time position for at least two years with no exclusion of extension. Regarding remuneration, the Tribunal considered salary data from various sources, concluding that the proposed salary of $53,500 per year was no less favourable than that provided to equivalent Australian workers. The Tribunal also noted the absence of adverse information and satisfactory compliance with workplace relations laws. Crucially, under regulation 5.19(4)(h)(ii), the Tribunal found that the position was located in regional Australia, there was a genuine need for the paid employee, and it could not be filled by a local Australian citizen or permanent resident, satisfying the alternative criteria for regional nominations.

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