J & J Pty Ltd (Migration)

This matter concerned an application by J & J Pty Ltd for approval of a nomination for a Restaurant Manager position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The dispute arose because the Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not demonstrated a genuine need for the nominee or that the position could not be filled locally. The case was heard by De-Anne Kelly.

The primary legal issue before the court was whether J & J Pty Ltd had met the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the genuine need for the nominated employee and the inability to fill the position with an Australian citizen or permanent resident in the same local area. This involved assessing the evidence presented regarding the business's operations, recruitment efforts, and the relocation of the business from Nanango to Highfields.

The court reasoned that the applicant had failed to establish a genuine need for the nominated position in the context of the business's relocation. The original nomination was for a position in Nanango, but the business subsequently moved to Highfields, a suburb of Toowoomba. The court found that the advertising for the original location was not sufficient to demonstrate that the position could not be filled locally in the new location. Furthermore, while advice from a regional certifying body was considered, the court emphasised the need for sound evidence to support the claim that the position could not be filled locally, which was not adequately provided. The court also noted that the nominee's role appeared to involve more time spent as a waiter than as a restaurant manager, which cast doubt on the genuine need for the nominated position.

The Tribunal affirmed the decision under review to refuse the nomination.