Southern Sun Restaurants Pty Ltd (Migration)

This matter concerned an application by Southern Sun Restaurants Pty Ltd for approval of a nomination under the Direct Entry stream of the Migration Regulations 1994. The delegate had refused to approve the nomination, contending that the predominant tasks of the nominated position did not correspond to those of an ANZSCO skill level 2 retail manager, but rather to an ANZSCO skill level 4 retail supervisory position. The delegate also noted that the franchise nature of the business limited the scope for higher-level decision-making duties typically associated with a retail manager.

The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the tasks of the position corresponded to an ANZSCO occupation, whether there was a genuine need for the nominator to employ a paid employee, and whether the terms and conditions of employment were no less favourable than those provided to an Australian citizen or permanent resident for equivalent work. The Tribunal also considered requirements relating to the nominator's compliance with workplace relations laws and the absence of adverse information known to Immigration.

The Tribunal found that the applicant had provided sufficient evidence, including financial statements, franchise agreements, and operational reports, to demonstrate that the nominated position, despite being within a franchise, involved genuine retail manager duties. The Tribunal was satisfied that there was a genuine need for the nominator to employ a paid employee in the position under its direct control and that the training requirements specified in the relevant legislative instrument had been met. Furthermore, the Tribunal found no evidence of adverse information known to Immigration and concluded that the nominator had a satisfactory record of compliance with workplace relations laws.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.