Sareen and Rao Pty. Ltd (Migration)

This matter concerned an application by Sareen and Rao Pty. Ltd for approval of a nomination of a position under the Direct Entry stream. The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. The application was heard in conjunction with a review of the refusal of the visa application of the proposed nominee, Ms Navdeep Kaur Bhullar, for the occupation of Café or Restaurant Manager.

The primary legal issue before the Tribunal was whether the nominator, Sareen and Rao Pty. Ltd, satisfied the criteria stipulated in regulation 5.19(4) for the approval of a nominated position. This involved assessing whether the application was in the approved form, whether the nominator was actively and lawfully operating a business, whether the position was not for labour hire, and crucially, whether the nominee would be employed full-time for at least two years with terms and conditions that did not expressly exclude an extension. The Tribunal also had to consider whether there was a genuine need for the position, whether the tasks corresponded to an occupation specified by the Minister, and whether there was any adverse information known to Immigration.

The Tribunal found that Sareen and Rao Pty. Ltd met all the requirements of regulation 5.19(4). It was satisfied that the application was compliant, that the nominator was actively and lawfully operating an Indian restaurant business in Australia, and that the position was not a labour-hire arrangement. The Tribunal accepted the contract of employment and oral evidence from a company director, Mr Singh, as sufficient to establish the term of employment and the terms and conditions of employment. Furthermore, the Tribunal was satisfied that the nominated position of Café or Restaurant Manager corresponded to the relevant ANZSCO occupation, that there was a genuine need for the position, and that no adverse information was known to Immigration.

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