IRFAN TOKMAK ATF THE TOKMAK TRUST (Migration)

The Administrative Appeals Tribunal considered an application by IRFAN TOKMAK ATF THE TOKMAK TRUST concerning the approval of a nominated position under the Direct Entry stream. The applicant sought to nominate a position for a Café or Restaurant Manager.

The primary legal issue before the Tribunal was whether the applicant met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the employer nomination. This involved assessing various criteria, including the genuineness of the need for the position, the applicant's compliance with workplace relations laws, the absence of adverse information, and the suitability of the nominated occupation for the proposed visa holder.

The Tribunal found that the applicant satisfied all relevant sub-regulations. Specifically, it determined that the nominated position was located in regional Australia (Toowoomba), that there was a genuine need for a paid employee due to a lack of suitable local candidates despite advertising, and that the tasks of the position corresponded to the occupation of Café or Restaurant Manager as specified in the relevant ANZSCO category. Furthermore, the Tribunal was satisfied that the applicant was actively and lawfully operating a business in Australia, that there was no adverse information known to Immigration, and that the applicant had a satisfactory record of compliance with workplace relations laws. The Queensland Chamber of Commerce and Industry, as a Regional Certifying Body, had also provided the necessary advice.

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