S FISHER TC HEMBLING & DS HOBMAN (Migration)

This matter concerned an application for approval of a nomination for a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The applicant, trading as Delizioso Laurieton, sought approval for the nomination of Ms Claire Rachel Allison for the position of Restaurant Manager. The business partners and owners, Mr Shane Fisher and Ms Destiny Hohman, represented the applicant. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the application was compliant, whether there was any adverse information known to the Department of Home Affairs, whether the applicant had a satisfactory record of compliance with workplace relations laws, and whether the requirements relating to the tasks of the position, the genuine need for the position, and the training requirements were satisfied.

The Tribunal found that the application was made in the approved form, accompanied by the prescribed fee, and included the necessary certification regarding conduct contravening section 245AR(1) of the Migration Act 1958. It was also satisfied that there was no adverse information known to the Department and that the applicant had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal determined that the requirements of regulation 5.19(4)(h)(ii) were met, which included the position being located in regional Australia, a genuine need for the nominee to be employed under the nominator's direct control, the inability to fill the position with a local Australian citizen or permanent resident, and that the tasks corresponded to an occupation specified in a legislative instrument, with advice from a regional certifying body. The Tribunal noted the business's growth since its inception in 2016, its strong performance until COVID-19, and the subsequent workforce shortages, particularly in wait staff, which had led to reduced trading days.

The Tribunal decided to set aside the decision under review and substitute a decision approving the nomination.