NEEV PTY LTD (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning NEEV PTY LTD's nomination for a Retail Manager position under the Direct Entry stream. The applicant, a Director of a Red Rooster franchise, sought approval for the nomination of an employee for this role. The core of the dispute revolved around whether the nomination met the specific requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was tasked with determining if NEEV PTY LTD satisfied all the criteria for approving the nomination. This involved assessing whether the business was actively and lawfully operating, whether there was a genuine need for the nominated position, and if the business had the financial capacity to employ the nominee full-time for at least two years. Furthermore, the Tribunal had to consider whether the terms and conditions of employment offered to the nominee were no less favourable than those provided to an Australian citizen or permanent resident in an equivalent role, and if there was any adverse information known to Immigration concerning the nominator or associated persons. The Tribunal also examined the requirement for satisfactory compliance with workplace relations laws and the specific conditions related to the tasks of the position, including its location in regional Australia and the genuine need for the role.

In its reasoning, the Tribunal found that NEEV PTY LTD met the requirements of regulation 5.19(4). Evidence demonstrated that the franchise had been operating since 2011 and was registered with ASIC. The Tribunal was satisfied that there was no adverse information known to Immigration regarding the nominator. The employment contract for the nominee, commencing in February 2017 with a salary of $52,000 plus superannuation, was found to comply with the Fair Work Act 2009 and exceeded minimum award entitlements. Crucially, the Tribunal determined that the position was located in regional Australia and that a genuine need for the role existed, which could not be filled locally, as evidenced by the Regional Development Australia - Riverina Inc. granting regional certification.

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