Silk Hospitality Pty Ltd (Migration)

[2023] AATA 2557

Silk Hospitality Pty Ltd (Migration) [2023] AATA 2557 (26 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Silk Hospitality Pty Ltd

REPRESENTATIVE:  Mr Thomas Griffiths (MARN: 1387008)

CASE NUMBER:  1926300

HOME AFFAIRS REFERENCE(S):          BCC2018/943816

MEMBER:Angela Julian-Armitage

DATE AND TIME OF

ORAL DECISION AND REASONS:         26 June 2023 at 3:34 am (QLD time)

DATE OF WRITTEN RECORD:                10 July 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 10 July 2023 at 10:52am

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Housekeeping Manager – full-time employment for a minimum of two years – updated employment contract – decision under review set aside           

LEGISLATION

Migration Act 1958
Migration Regulations 1994, 5.19

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to approve a nomination pursuant to reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval of a nomination for a subclass 187 Direct Entry visa on 28 February 2018. The requirements for the approval of the nomination for a position in Australia are contained in reg 5.19 of the Regulations which provides for two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, the application must be approved. Alternatively, if any of the requirements are not met, the application must be refused: reg 5.19(5).

3.    In the present case, the applicant has applied for approval of a nomination seeking to satisfy the criteria in the Direct Entry nomination stream.

4.    The applicant, who provides outsourced hotel housekeeping services, nominated Mr Cristian Mauricio GARCIA GOMEZ (‘the nominee’) to work in the nominated position of Housekeeping Manager in the occupation of Hotel Service Manager which is coded number 431411 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). 

5. The nomination was refused on the basis that the applicant did not satisfy reg 5.19(4)(d)(i) of the Regulations in that there was no provision contained in the applicant’s Employment Contract allowing for the position to be available to the nominee on a full-time basis for a minimum period of two years and without exclusion of a possible extension of that period.

6.    The applicant appeared before the Tribunal on 26 June 2023 to give evidence and present arguments and was represented in relation to the review. 

7.    At the conclusion of the hearing, the Tribunal made an oral decision and gave an oral statement of its reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. Based on the oral evidence from the nominator together with written evidence that the issues had been addressed and corrected in the most recent Employment Contract dated  24 June 2021, the Tribunal is satisfied that the requirements of subregulation 5.19(4) in relation to the visa class 187 Direct Entry nomination have been met.

2. Furthermore, the Tribunal has evidence that the nominee has been in the position for a period of over six years, having commenced work with the nominator in 2016.

10.In the circumstances, the Tribunal is satisfied that the nomination is a valid nomination which should be approved.

DECISION

11.The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Angela Julian-Armitage
Member