Jakkarin Tangphunpholwiwat (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Jakkarin Tangphunpholwiwat concerning the approval of a nomination for a Café or Restaurant Manager position under the Direct Entry nomination stream. The dispute centred on whether the nominated position was genuine and if the applicant's business expansion plans and financial information adequately demonstrated a need for the nominee.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if there was a genuine need for the nominator to employ a paid employee in the nominated position under the nominator's direct control, as required by regulation 5.19(4)(h)(ii)(B).

The Tribunal affirmed the decision to refuse the nomination. It found that while the business and nominated position were located in regional Australia, the applicant had not provided sufficient recent information to satisfy the delegate, and subsequently the Tribunal, of a genuine need for the Café or Restaurant Manager. The Tribunal noted that the most recent financial and operational information provided was from the 2017/18 financial year, which was over three years old. Furthermore, the Tribunal had not received any updated information regarding the applicant's organisational structure, staffing, business activities, financial position, or the impact of COVID-19 restrictions on the hospitality venues. This lack of contemporary evidence led the Tribunal to conclude that it could not be satisfied that the nominated position was genuinely required.