Knead Patisserie Pty Ltd (Migration)

This matter concerned an application by Knead Patisserie Pty Ltd for the approval of a nominated position under the Direct Entry stream of the Employer Nomination Scheme. The applicant sought to nominate a Pastrycook position, asserting that the role could not be filled by a local Australian citizen or permanent resident. The review before the Tribunal was whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to determine if Knead Patisserie Pty Ltd satisfied all the criteria stipulated in regulation 5.19(4) for the approval of the nominated position. This included assessing whether the nomination application was in the approved form, identified a genuine need for a paid employee under the nominator's direct control, and that the nominator was actively and lawfully operating a business in Australia. Further, the Tribunal had to consider if the position was not a labour-hire arrangement, if the employment terms met specific duration and extension possibilities, and if there was no adverse information known to Immigration. Crucially, the Tribunal needed to ascertain if the nominator had a satisfactory record of compliance with workplace relations laws and if the nominated position met the requirements concerning the tasks of the position, a genuine need, and any applicable training or regional certification criteria.

In its reasoning, the Tribunal found that Knead Patisserie Pty Ltd had met each of the requirements under regulation 5.19(4). The application was compliant, the business was actively and lawfully operating, and the position was not for labour hire. The Tribunal was satisfied that the nominee would be employed for at least two years, with terms and conditions no less favourable than those offered to Australian workers. Furthermore, no adverse information was known to Immigration, and the nominator had a satisfactory record of compliance with workplace relations laws. Specifically addressing regulation 5.19(4)(h)(ii), the Tribunal confirmed the position was located in regional Australia, there was a genuine need for the nominee, the position could not be filled locally, and a regional certifying body had provided the necessary advice.

Consequently, the Tribunal set aside the original decision under review and substituted it with a decision approving the nomination.