Laksmanan Pty Ltd atf Laksmanan Family Trust (Migration)

This matter concerned an application by Laksmanan Pty Ltd atf Laksmanan Family Trust for approval of a nominated position under the Direct Entry stream of the Employer Nomination Scheme. The applicant sought to nominate a Cook position for a visa applicant whose qualifications, experience, and responsibilities aligned with the ANZSCO 351411 descriptor for a Cook. The core dispute revolved around whether the nomination met the various requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant had satisfied all the criteria for approval of the nomination. Specifically, the Tribunal had to assess whether the application was made in the approved form, whether there was a genuine need for a paid employee under the nominator's direct control, and whether the nominator was actively and lawfully operating a business in Australia. Further issues included whether the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident, whether there was any adverse information known to Immigration, and whether the nominator had a satisfactory record of compliance with workplace relations laws. The Tribunal also had to consider whether the position was located in regional Australia, if there was a genuine need for the position that could not be filled by a local Australian, and if the tasks of the position corresponded to an occupation specified by the Minister.

The Tribunal found that the application was compliant with the procedural requirements, including being lodged electronically and accompanied by the prescribed fee. It was satisfied that there was a genuine need for a Cook, given the restaurant's operations and the challenges in recruiting suitably experienced staff. The Tribunal accepted evidence that the nominator was lawfully operating a modest Indian cuisine restaurant in Joondalup, Western Australia, and that the visa applicant's skills and qualifications were appropriate for the nominated role. Research into similar positions indicated that the proposed remuneration fell within acceptable ranges, satisfying the requirement for terms and conditions equivalent to those offered to local workers. Furthermore, no adverse information was presented, and the nominator demonstrated a satisfactory record of compliance with workplace relations laws. The Tribunal concluded that the position was located in regional Australia and that the tasks corresponded to the nominated occupation.

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