SAINI PTY LTD (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning Saini Pty Ltd's application for approval of its nomination for the position of Restaurant Manager under the Direct Entry stream of the Employer Nomination Scheme. Saini Pty Ltd sought to nominate Ms Kaur for the role at its Port Macquarie restaurant, with the occupation classified under ANZSCO code 141111. The core dispute revolved around whether Saini Pty Ltd met the regulatory requirements for approving such a nomination, particularly in light of information provided by a Regional Certifying Body and the financial viability of the nominator.

The Tribunal was required to determine if Saini Pty Ltd satisfied the criteria outlined in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the court needed to assess whether the nominator was actively and lawfully operating a business, whether the nominated employee would be employed full-time for at least two years with no express exclusion of extension, and whether the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident. Furthermore, the Tribunal had to consider the genuine need for the position and whether it could be filled by an Australian citizen or permanent resident, especially given the location in regional Australia.

Deputy President J.L Redfern PSM found that Saini Pty Ltd met several key requirements. The Tribunal was satisfied that the application was in the approved form, included the necessary certification regarding conduct contravening section 245AR(1) of the Act, and that Saini Pty Ltd was actively and lawfully operating its business, evidenced by company searches, business activity statements, and tax returns. The Tribunal also accepted that Ms Kaur would be employed full-time for at least two years and that the role was genuinely needed, particularly due to the managing director's health issues. Despite some periods of unprofitability, the Tribunal was persuaded by evidence of continuous trading since 2000 and recent improvements in profitability, concluding that the company had the capacity to continue trading and employ Ms Kaur.

Consequently, the Tribunal set aside the original decision under review and substituted a decision approving Saini Pty Ltd's nomination.