Kunkat Pty Ltd (Migration)

The Administrative Appeals Tribunal considered an appeal by Kunkat Pty Ltd concerning the refusal of an employer nomination for a Retail Manager (General) position. The applicant, operating a Pizza Hut franchise, sought approval for the nomination under the Direct Entry stream of the relevant migration regulations. The core dispute revolved around whether the applicant met the financial capacity and genuine employment requirements for the nominated role.

The Tribunal was required to determine if the applicant satisfied the criteria for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the terms and conditions of employment offered to the nominated employee would be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work, and whether there was a genuine need for the position.

The Tribunal affirmed the decision to refuse the nomination. It found that the proposed salary of $45,000 per annum for a full-time Retail Manager was significantly less than the typical market rate, raising concerns about whether the terms were no less favourable than those offered to Australians. Furthermore, the Tribunal noted that the visa applicant, Mr Kundnani, had transitioned to part-time work after the initial refusal, stating he was looking for other residency options, which suggested the position might not be a genuine full-time role as required. The Tribunal concluded that the applicant had not demonstrated that the nominated position met the regulatory requirements, particularly concerning the terms and conditions of employment and the genuine need for the role.