S & C GIARDINA PTY LTD (Migration)

This matter came before the Administrative Appeals Tribunal concerning an application for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant was S & C Giardina Pty Ltd, which operates an established Italian restaurant in Alice Springs, Northern Territory. The dispute centred on whether the nominated position, that of a Café or Restaurant Manager, met the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to determine if the nominated position and the nominating entity satisfied all the criteria for approval under regulation 5.19(4). Specifically, this involved assessing whether the tasks of the position corresponded to an occupation defined in the ANZSCO dictionary, whether there was a genuine need for the position that could not be filled locally by an Australian citizen or permanent resident, and whether the position was located in regional Australia. Additionally, the Tribunal had to consider requirements relating to the terms and conditions of employment, the absence of adverse information concerning the nominator, and satisfactory compliance with workplace relations laws.

The Tribunal found that the nominated position's responsibilities, as detailed by the applicant, aligned with the tasks of a Café or Restaurant Manager as defined in the ANZSCO dictionary. It was satisfied that the position was located in regional Australia and that there was a genuine need for the role, which could not be filled locally. The Tribunal also confirmed that the salary and terms of employment were no less favourable than those offered to Australian citizens or permanent residents in equivalent roles. Furthermore, the Tribunal was satisfied that there was no adverse information known to Immigration regarding the nominator and that the nominator had a satisfactory record of compliance with workplace relations laws.

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