MK Jess Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a nomination application made by MK Jess Pty Ltd under the Direct Entry stream. The core of the dispute revolved around whether MK Jess Pty Ltd, as the nominator, met all the regulatory requirements for the approval of its nomination for a Hotel or Motel Manager position.

The Tribunal was required to determine if the nominator satisfied the criteria set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, if the nominated position was not a labour-hire arrangement, and if the terms of employment met the prescribed standards. Further issues included whether there was any adverse information known to Immigration, if the nominator had a satisfactory record of compliance with workplace relations laws, and whether there was a genuine need for the nominee to be employed in the position under the nominator's direct control, with the position being located in regional Australia and unable to be filled by a local resident.

The Tribunal found that MK Jess Pty Ltd had met all the necessary requirements. It was satisfied that the application was in the approved form, the fee was paid, and the nominee was identified as a paid employee to work under the nominator's direct control. The Tribunal accepted evidence demonstrating that the business was actively and lawfully operating, with losses during the COVID-19 pandemic adequately explained and future recovery projected. The Tribunal also found that the position was not a labour-hire arrangement and that the employment contract, though undated, indicated full-time employment for at least two years with the possibility of extension. Crucially, the Tribunal was satisfied that the terms and conditions of employment would be no less favourable than those offered to an Australian citizen or permanent resident, that there was no adverse information known to Immigration, and that the nominator had a satisfactory record of compliance with workplace relations laws. Furthermore, the Tribunal was persuaded by the evidence that there was a genuine need for the nominee's employment in regional Australia, that the position could not be filled by a local resident, and that the relevant regional certifying body had provided advice.

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