Hermano Global Pty Ltd (Migration)

This matter concerned an appeal by Hermano Global Pty Ltd (the applicant) against a decision to refuse the approval of an employer nomination for a Cook position under the Direct Entry Stream of the Regional Sponsored Migration Scheme visa subclass 187. The applicant, trading as Shot Coupe, sought to nominate Mr Imranul Haque Khan for the position. The core of the dispute revolved around whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the need to employ the nominated person and the active operation of the business.

The primary legal issue before the Tribunal was whether the applicant had satisfied all the criteria for the approval of the nomination under regulation 5.19(4). This included determining if there was a genuine need for the nominator to employ the identified person as a paid employee under their direct control, and whether the nominator was actively and lawfully operating a business in Australia. The Tribunal was required to consider the impact of the closure of the applicant's café and the difficulties in securing new premises on these requirements.

The Tribunal's reasoning focused on the applicant's failure to demonstrate a continued need for the nominated employee. It was put to the applicant that the termination of their café lease and their inability to secure new premises due to financial constraints meant there was no longer a genuine need to employ Mr Khan as a cook under their direct control. The Tribunal noted that regulation 5.19(4)(a)(ii) requires the identification of a need for the nominator to employ an identified person, and regulation 5.19(4)(b)(i) requires the nominator to be actively and lawfully operating a business. The Tribunal found that the applicant's circumstances, including the closure of the business and the lack of funds to establish a new one, meant these requirements were not met. The Tribunal affirmed the decision under review.