OM ROADHOUSE PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision by the Department of Home Affairs to refuse the approval of a nominated position. The applicant, OM Roadhouse Pty Ltd, sought to nominate a Café or Restaurant Manager position under the Short-term stream of the Temporary Skill Shortage (TSS) visa program. The AAT was required to determine whether the applicant met the criteria for approval of the nomination, specifically concerning the genuineness of the position and compliance with labour market testing requirements.

The legal issues before the Tribunal were whether the nominated position was genuine and full-time, as required by regulation 2.72(10) of the Migration Regulations 1994, and whether the applicant had satisfied the labour market testing requirements under section 140GBA of the Migration Act 1958. The Tribunal also considered the evidentiary requirements for labour market testing as stipulated in IMMI 18/036.

The Tribunal reasoned that the applicant had not provided sufficient evidence to demonstrate that the nominated position of Café or Restaurant Manager was genuine or that there was a genuine need for such a role within their business, particularly in light of the impact of COVID-19 lockdowns on regional businesses. Furthermore, the Tribunal found that the applicant had not provided the necessary evidence to satisfy the labour market testing requirements. Consequently, the Tribunal affirmed the Department's decision to refuse the nomination.