Smaash Enterprises Pty Ltd Atf Shri Radhe Krishna Discretionary Trust (Migration)

The Administrative Appeals Tribunal considered an application by Smaash Enterprises Pty Ltd Atf Shri Radhe Krishna Discretionary Trust concerning the approval of a nomination for a position under the Direct Entry stream. The applicant operates a 7 Eleven franchise and a Nisa Thai restaurant, both under the same Australian Business Number. The dispute centred on whether the applicant genuinely required two managers for the Nisa Thai restaurant, as nominated, to ensure the business's continued profitability and proposed expansion.

The primary legal issue before the Tribunal was whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the genuine need for the nominated positions. This involved assessing whether the applicant could demonstrate a demonstrable need for two restaurant managers, considering the business's operational demands, its financial viability, and the proposed expansion plans. The Tribunal also considered the applicant's other business interests and the directors' management capacity.

The Tribunal reasoned that while the applicant's businesses were operating lawfully and profitably, and the directors were actively involved, the evidence did not sufficiently establish a genuine need for two full-time restaurant managers. Although the applicant argued that two managers were essential for efficient operation, customer service, and proactive management in a competitive market, the Tribunal found that the applicant had not adequately demonstrated why one manager, supported by other staff, would not suffice. The Tribunal noted the complexity of restaurant management but concluded that the applicant had not discharged the onus of proving the necessity of two such positions to meet the criteria of regulation 5.19(4)(a)(ii).

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal was not satisfied that the applicant had met all the requirements for the approval of the nomination under the Direct Entry stream.