KAREN AND ELIZABETH FINES (Migration)

This matter concerned an application for approval of a nominated position under the Direct Entry Nomination stream of the Employer Nomination scheme. The applicants, Karen and Elizabeth Fines, sought approval for a Café and Restaurant Manager position at their business, OTZ Food, located in Port Douglas, Queensland. The core dispute revolved around whether there was a genuine need for the nominated position, given the involvement of the business owners and the availability of local workers. The decision was made by the Tribunal.

The Tribunal was required to determine whether the applicants met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess if the application was compliant, if the nominator was actively and lawfully operating a business in Australia, if the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents, and if there was no adverse information known to Immigration. Crucially, the Tribunal had to consider whether there was a genuine need for the nominated position in regional Australia, whether the position could not be filled by a local Australian citizen or permanent resident, and if the tasks of the position corresponded to an occupation listed in the relevant legislative instrument.

The Tribunal reasoned that the partnership had met the various regulatory requirements. It found that the application was compliant, the business was actively and lawfully operating, and the terms of employment were satisfactory. The Tribunal placed significant weight on evidence demonstrating that Karen Fines had reduced her involvement in the day-to-day operations of OTZ Food due to health issues and her commitment to another business on the Gold Coast. This, coupled with the business's operational scale, staffing levels, and turnover, supported a finding of genuine need for a dedicated manager. Furthermore, evidence of extensive recruitment efforts, including advertisements and engagement with regional employment services, indicated that the position could not be filled by a local Australian citizen or permanent resident. The tasks of the nominated position were found to align with the ANZSCO description for Café or Restaurant Manager, and the nominee possessed the requisite qualifications and experience.

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