S & S Hospitality Group Pty Ltd (Migration)

This matter concerned an appeal by S & S Hospitality Group Pty Ltd against a decision to refuse the approval of a nominated position under the Direct Entry nomination stream. The dispute centred on whether the nominated position for a Cook at a café in Manangatang, Victoria, met the requirements of Regulation 5.19(4) of the Migration Regulations 1994. The Tribunal was required to determine if the applicant had satisfied all the necessary criteria for the nomination to be approved.

The primary legal issue before the Tribunal was whether S & S Hospitality Group Pty Ltd had demonstrated a genuine need for the nominated Cook position, and whether the business was actively and lawfully operating, as required by Regulation 5.19(4). This involved assessing conflicting evidence regarding the operational status of the Manangatang café and the company's trading activity, particularly in light of Business Activity Statements (BAS) that indicated trading during a period when the applicant claimed the business had ceased operations due to COVID-19. The Tribunal also considered the requirements for a business to have operated for at least 12 months, or to have an auditable plan if operating for less than 12 months, as stipulated in Regulation 5.19(4)(h)(i)(B).

The Tribunal affirmed the decision to refuse the nomination. It found that the applicant had not satisfied the requirements of Regulation 5.19(4). Specifically, the Tribunal noted conflicting evidence regarding the company's trading status, with oral evidence suggesting no trading since March 2020, while BAS statements indicated sales for the July-September 2020 period. Although post-hearing evidence suggested the BAS was issued in error, the Tribunal was not satisfied that the business was actively and lawfully operating or that there was a genuine need for the position, particularly given the café had been closed for over 12 months. The Tribunal concluded that the applicant had not met the necessary criteria for the Direct Entry nomination stream.