Messineo Holdings Pty Ltd (Migration)

Messineo Holdings Pty Ltd (Migration) concerned an application for approval of a nomination for the Direct Entry stream, specifically for the position of café or restaurant manager. The applicant sought to have the delegate's decision, which refused to approve the nomination, set aside. The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994.

The central legal issue was whether the nominated position of café or restaurant manager genuinely met the criteria for the Direct Entry stream, particularly concerning the tasks of the position and the genuine need for the role. The delegate had formed the view that the tasks were more akin to those of a lower-level retail supervisor. The Tribunal considered extensive documentation and written submissions provided by the applicant, including ASIC and ABN records, financial statements, an organisational chart, a position description, evidence of tasks performed, and statutory declarations from the directors.

The Tribunal found that the applicant met the requirements of regulation 5.19(4). It was satisfied that the application was in the approved form, accompanied by the prescribed fee, and identified a need for the nominator to employ the identified person under their direct control. Furthermore, the Tribunal was satisfied that there was no adverse information known to Immigration, and the nominator had a satisfactory record of compliance with workplace relations laws. Crucially, regarding regulation 5.19(4)(h)(ii), the Tribunal found that the position was located in regional Australia, there was a genuine need for the paid position that could not be filled by a local Australian citizen or permanent resident, and the tasks corresponded to an eligible occupation. The Tribunal concluded that the delegate's decision was made without adequately considering the evidence and submissions.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.