Jay Varahi Pty Ltd (Migration)

This matter concerned an application by Jay Varahi Pty Ltd for approval of a nomination for the position of Restaurant Manager under the Direct Entry stream of the Regional Sponsored Migration Program. The applicant operated a service station and dining facility in Nhill, Victoria. The core dispute revolved around whether the applicant met the various requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of such a nomination.

The court was required to determine if Jay Varahi Pty Ltd satisfied all the criteria under regulation 5.19(4) for the approval of the employer nomination. Specifically, this involved assessing whether the applicant was actively and lawfully operating a business, whether the terms and conditions of employment were appropriate, if there was a genuine need for the nominated position, and crucially, whether the requirements concerning advice from a Regional Certifying Body located in the same state as the nominated position had been met.

The Tribunal found that the applicant met the requirements of regulation 5.19(4)(e) regarding the terms and conditions of employment being no less favourable than those provided to an Australian citizen or permanent resident. It also found that there was no adverse information known to Immigration concerning the nominator, and that the applicant had a satisfactory record of compliance with workplace relations laws, satisfying regulations 5.19(4)(f) and (g) respectively. Critically, the Tribunal determined that the applicant met the requirements of regulation 5.19(4)(h)(ii), which pertains to positions located in regional Australia, including the genuine need for the position and the requirement for advice from a specified Regional Certifying Body located in the same State or Territory as the position.

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