SAI LAL SHAH EMPIRES PTY. LTD. (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Sai Lal Shah Empires Pty Ltd concerning the approval of a nomination for a Café or Restaurant Manager position. The applicant operates Noor Indian Cuisine in Hayfield, Victoria, and sought approval for a nomination under the Direct Entry stream of the Regional Sponsored Migration Scheme (RSMS). The Department of Home Affairs had previously refused the nomination, citing concerns that the financial documents did not demonstrate the nominator's ability to employ the nominee full-time for two years.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for the approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether the nominator was actively and lawfully operating a business, whether there was a genuine need for the nominated position, whether the nominee would be employed full-time for at least two years on terms no less favourable than those offered to Australian citizens or permanent residents, and whether there was any adverse information known to the Department. The Tribunal also had to consider compliance with workplace relations laws and whether the tasks of the position corresponded to an occupation specified by the Minister, particularly in the context of a regional location.

The Tribunal's reasoning focused on satisfying each limb of regulation 5.19(4). It found that the applicant had provided substantial evidence, including financial reports, an organisational chart, and labour market testing, demonstrating a genuine need for the nominated position. Despite the business's temporary closure due to COVID-19, the Tribunal was satisfied that the nominee had been consistently paid in accordance with her employment contract. The Tribunal also found no adverse information known to the Department, a satisfactory record of compliance with workplace relations laws, and that the tasks of the position corresponded to the specified occupation. Crucially, the Tribunal determined that the position was located in regional Australia and that genuine attempts to recruit locally had been unsuccessful, satisfying the requirement for a genuine need that could not be filled by a local Australian citizen or permanent resident.

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