Kingu Sushi Pty Ltd (Migration)

This matter concerned an application by Kingu Sushi Pty Ltd for approval of an employer nomination under the Regional Sponsored Migration Direct Entry stream. The applicant operates a Japanese restaurant in Coffs Harbour, New South Wales, and sought to nominate Mr Zijian Huang for the position of Cook/Sushi Chef. The nominated base rate of pay was $56,000 per annum. The decision was made by Karen McNamara.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. This involved determining compliance with various sub-regulations concerning the application form, the identification of a genuine need for a paid employee under the nominator's direct control, the active and lawful operation of the business, the terms and conditions of employment, the absence of adverse information, satisfactory compliance with workplace relations laws, and specific requirements relating to the tasks of the position and the genuine need for the nominee, particularly in the context of regional Australia.

The Tribunal's reasoning focused on assessing the evidence against each criterion in regulation 5.19(4). It found that the application was compliant with regulation 5.19(4)(a), including the identification of a genuine need for the nominated employee to work under the nominator's direct control. The Tribunal was satisfied that the business was actively and lawfully operating in Australia, and that there was no adverse information known to the Department. Furthermore, the applicant demonstrated a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal found that the requirements of regulation 5.19(4)(h)(ii) were met, specifically that the position was located in regional Australia, there was a genuine need for the nominee to be employed under the nominator's direct control, and that the tasks corresponded to an occupation specified in the relevant legislative instrument.

Based on its findings that the applicant met all the necessary requirements of regulation 5.19, the Tribunal set aside the original decision under review and substituted a decision approving the nomination.