Food and Beverages Enterprises Pty Ltd (Migration)

This matter concerned an application by Food and Beverages Enterprises Pty Ltd for approval of a nominated position under the Direct Entry nomination stream. The applicant sought to nominate a Café or Restaurant Manager. The Tribunal was required to determine 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.

The legal issues before the Tribunal included whether the application was compliant, 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 consider the term of employment for the visa holder, whether the terms and conditions were no less favourable than those offered to an Australian citizen or permanent resident, and if there was any adverse information known to Immigration. Crucially, the Tribunal was required to assess whether the tasks of the position corresponded to an occupation specified by the Minister, and in the context of regional Australia, whether there was a genuine need for the position that could not be filled by a local Australian resident.

The Tribunal found that the applicant had met all the requirements of regulation 5.19(4). Specifically, the application was in the approved form, fees were paid, and a need for a paid employee was identified. The nominator was found to be actively and lawfully operating a business in Cairns, Queensland, which was considered regional Australia for the purposes of the regulation. The employment contract met the minimum term and did not exclude extension, and the terms and conditions were deemed satisfactory. No adverse information was presented, and the nominator had a satisfactory record of workplace relations compliance. The Tribunal was satisfied that there was a genuine need for the position, that advertising efforts had been made, and that the position could not be filled by a local Australian resident, with the tasks aligning with the specified occupation of Café or Restaurant Manager.

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