JD0786 Pty Ltd (Migration)

This matter concerned an application by JD0786 Pty Ltd for the approval of a nomination for a Café or Restaurant Manager position under the Direct Entry stream of the RSMS visa program. The administrative decision under review had refused to approve the nomination. The Tribunal was required to determine whether the applicant met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nomination.

The Tribunal considered several legal issues, including whether the nominating entity was actively and lawfully operating a business in Australia, whether the position was genuine and could not be filled by an Australian citizen or permanent resident, and whether the terms and conditions of employment were no less favourable than those offered to an Australian worker in an equivalent role. The Tribunal also examined whether there was any adverse information known to Immigration concerning the nominator and whether the nominator had a satisfactory record of compliance with workplace relations laws.

The Tribunal's reasoning focused on the evidence presented regarding the recruitment process and the genuine need for the position. It acknowledged the challenges of recruiting qualified staff in regional Western Australia and found that extensive efforts had been made to recruit locally, including advertising on popular job sites and in newspapers, but no suitable Australian candidates were found. The Tribunal noted that the nominating entity's revenues had rebounded and exceeded pre-COVID-19 levels, supporting the genuine need for the position. Having considered the evidence, the Tribunal was satisfied that all the requirements of regulation 5.19(4) were met.

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