Mara Kelleher (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for approval of a nominated position under the Direct Entry stream. The applicant, operating a hairdressing salon named Barber King, sought approval for a nominated hairdresser position. The core dispute revolved around whether the applicant met the various regulatory requirements for approving such a nomination.

The Tribunal was tasked with determining if the applicant satisfied the criteria outlined in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether there was a genuine need for the nominated position, whether the business structure and expansion plans supported the need for a full-time employee, whether appropriate labour market testing had been conducted, and if the business possessed the necessary financial capacity. The Tribunal also considered requirements relating to the absence of adverse information, satisfactory compliance with workplace relations laws, and the specific tasks and training associated with the nominated occupation.

In its reasoning, the Tribunal found that the applicant's business, Barber King, was actively and lawfully operating. It noted that while the business primarily used a rent-a-chair model, it was expanding and genuinely required a full-time employee to address staff shortages. The Tribunal was satisfied that labour market testing had been undertaken, evidenced by advertisements on Seek. Furthermore, the Tribunal concluded that the terms and conditions of employment for the nominated position would be no less favourable than those offered to an Australian citizen or permanent resident. The Tribunal also confirmed that the business was located in regional Australia and that a regional certifying body had advised that the position could not be filled locally.

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