Hitihami Appuhamilage (Migration)

This matter concerned an appeal by Hitihami Appuhamilage against a decision regarding a Regional Employer Nomination (Permanent) visa, Subclass 187, Direct Entry stream. The core dispute revolved around whether the nomination for the position of cook met the requirements for approval under regulation 5.19(4) of the Migration Regulations 1994. The Tribunal was tasked with determining if all stipulated criteria for the nomination were satisfied.

The Tribunal was required to assess whether the nomination application complied with various regulatory requirements. These included the application being in the approved form and accompanied by the prescribed fee, the nominator actively and lawfully operating a business in Australia, and the nominated position not being a labour-hire arrangement. Furthermore, the Tribunal had to consider the terms of employment for the visa holder, ensuring they were no less favourable than those offered to Australian citizens or permanent residents in equivalent roles, and that there was no adverse information known to Immigration concerning the nominator. Finally, the Tribunal needed to ascertain if the nominator had a satisfactory record of compliance with workplace relations laws and if there was a genuine need for the position, with the tasks corresponding to an occupation specified by the Minister.

In its reasoning, the Tribunal systematically addressed each sub-regulation of 5.19(4). It found that the application was compliant, the nominator was actively operating the Phillip Island Chocolate Factory, and the position was not labour-hire. The employment contract met the duration and terms requirements, and remuneration was consistent with the relevant award. No adverse information was found, and the nominator demonstrated satisfactory compliance with workplace relations laws. Crucially, the Tribunal was satisfied that there was a genuine need for the cook position, supported by evidence of the nominee's qualifications, extensive experience, the volume of meals prepared, the nominator's financial capacity, and labour market testing. The Tribunal also noted the positive oral evidence from a local economic development manager regarding the significance of the business to regional tourism.

Consequently, the Tribunal decided to set aside the original decision and substitute it with a decision approving the nomination. The application was remitted to the Minister for reconsideration, with a direction that the nominator met the criteria under cl.187.233(3) and cl.187.212 of Schedule 2 to the Regulations.