Henry's Echuca Pty Ltd ATF The Henry's Echuca Trust (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for approval of a nomination for a cook position under the direct entry stream. The applicant, Henry's Echuca Pty Ltd ATF The Henry's Echuca Trust, sought approval for a nominee to fill a cook position within its operations. The core of the dispute revolved around whether the applicant had adequately demonstrated a genuine need for the nominated position and whether the necessary labour market testing had been conducted to show that no suitably qualified Australian citizen or permanent resident was available to fill the role.

The Tribunal was required to determine if the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether the application was in the approved form, accompanied by the prescribed fee, and identified a genuine need for the employer to employ the nominated person under their direct control. Crucially, the Tribunal had to consider the evidence presented regarding the applicant's business operations, the scope of its activities, and the labour market testing undertaken to ascertain the availability of local workers for the cook position. The Tribunal also had to consider any adverse information that may have been presented during the investigation.

The Tribunal's reasoning focused on the evidence presented by the applicant, including financial statements, business activity statements, organisational charts, and extensive documentation related to labour market testing. The Tribunal noted the applicant's substantial business operations, including multiple hospitality venues across regional Victoria and a significant turnover, indicating a genuine need for skilled staff. The Tribunal found that the labour market testing, which included various job advertisements and market insights, demonstrated an acute shortage of employees in the sector and that the position could not be filled by an Australian citizen or permanent resident. The Tribunal also considered the nominee's continuous employment in the role since 2018.

Ultimately, the Tribunal decided to set aside the original decision and substitute it with a decision approving the nomination. This outcome was based on the Tribunal's finding that the applicant had met all the requirements for the nomination approval under the relevant migration regulations, including demonstrating a genuine need for the position and the lack of available Australian workers.