JOE Y K NG AND WOI Y W NG (Migration)

This matter concerned an application for review by Joe Y K Ng and Woi Y W Ng of a decision to refuse the approval of a nomination for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The nominated position was that of a Restaurant Manager at the New Cathay Chinese Restaurant in Queanbeyan, New South Wales. The original decision to refuse the nomination was based on the delegate's dissatisfaction that the duties of the nominated position aligned with the ANZSCO description for a Café or Restaurant Manager, and the delegate's inclination that the actual duties more closely resembled those of a Retail Supervisor.

The Tribunal was required to determine whether the applicants met the requirements for approval of the nomination under the Direct Entry nomination stream as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the central issue was whether the tasks of the nominated position corresponded to those of an occupation specified by the Minister, and whether there was a genuine need for the position in regional Australia that could not be filled by a local Australian citizen or permanent resident. The Tribunal also considered whether the application was compliant, if there was any adverse information known to Immigration, and if the nominator had a satisfactory record of compliance with workplace relations laws.

The Tribunal reasoned that the nominated position, Restaurant Manager (ANZSCO 141111), was located in regional Australia, satisfying regulation 5.19(4)(h)(ii)(A). It found that the applicant had provided sufficient documentary and oral evidence, including a job description and testimony from the nominator and nominee, to establish a genuine need for the position under the nominator's direct control, and that the tasks corresponded to the specified occupation. The Tribunal was satisfied that the application met all other relevant requirements of regulation 5.19, including compliance, satisfactory workplace relations, and terms and conditions of employment.

Accordingly, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.