Hemkau Pty Ltd as trustee for KPJ Unit Trust (Migration)

The matter before the Tribunal concerned an application by Hemkau Pty Ltd as trustee for KPJ Unit Trust for approval of a nomination under the Direct Entry stream. The applicant sought to nominate Mr. Agarwal for the position of Retail Manager (General) at a Domino's franchise located in Golden Grove, South Australia. The core dispute revolved around whether the nominated position and the nominator met the specific requirements stipulated by Regulation 5.19(4) of the Migration Regulations 1994 for approval of the nomination.

The legal issues the Tribunal was required to determine included whether the nominated occupation corresponded to an ANZSCO occupation at skill level 1, 2, or 3, whether there was a genuine need for the position in regional Australia that could not be filled by a local resident, and whether the nominator was actively and lawfully operating a business in Australia. Additionally, the Tribunal had to consider whether the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident, and whether the nominator had a satisfactory record of compliance with workplace relations laws.

The Tribunal reasoned that the nominated position of Retail Manager, with an ANZSCO skill level of 2, satisfied the requirement for a position at skill level 1, 2, or 3. It found that Mr. Patel, the director and majority owner, genuinely needed a full-time Store Manager due to his other business interests and personal commitments, and that the position could not be filled by a local resident. The Tribunal was satisfied that the terms and conditions of employment offered to Mr. Agarwal were not less favourable than those provided to an Australian equivalent, and that Hemkau Pty Ltd had a satisfactory record of compliance with workplace relations laws.

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