RESTAURANT GROUP (SYD) PTY LTD (Migration)

This matter concerned an application by RESTAURANT GROUP (SYD) PTY LTD for approval of a nomination for a visa, specifically for the position of Cafe or Restaurant Manager. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under section 140GB(2) of the Migration Act 1958 and regulation 2.72 of the Migration Regulations 1994. The core of the dispute revolved around the applicant's failure to provide updated and current information regarding its business and the nominated position, despite being invited to do so by the Tribunal.

The Tribunal was tasked with assessing whether the applicant was an approved sponsor and satisfied the requirements of regulation 2.72, including that the terms and conditions of employment for the nominee would be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work. This requirement, under regulation 2.72(10)(c), is not applicable if the nominee's annual earnings are $250,000 or greater, as specified in IMMI 13/028. The applicant had nominated a position with a guaranteed base pay and annual earnings of $60,000, which fell below this threshold, thus making regulation 2.72(10)(c) applicable.

The Tribunal's reasoning focused on the applicant's lack of response to its request for updated information. As the applicant failed to provide the necessary details, the Tribunal could not be satisfied that all relevant criteria were met at the time of its decision. Specifically, without updated information, the Tribunal could not verify that the terms and conditions of employment offered to the nominee were no less favourable than those provided to an Australian equivalent, as required by regulation 2.72(10)(c). The Tribunal applied the principle that the onus is on the applicant to demonstrate that they meet the criteria for approval.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved, as the requirements of regulation 2.72, particularly concerning the terms and conditions of employment and the provision of updated information, were not met.