SUNSETS WAGGA PTY LTD (Migration)

This matter concerned an application by Sunsets Wagga Pty Ltd, trading as Muffin Break Wagga, for approval of a nomination for a Café Manager position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The applicant sought to nominate Mr Thang Minh BUI for the position, which was advertised at an annual salary of $50,000. The review before the Tribunal concerned whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the approval of this nomination.

The primary legal issues before the Tribunal were whether the applicant satisfied the various requirements stipulated in regulation 5.19(4) for the approval of an employer nomination. Specifically, the Tribunal was required to consider whether the business was actively and lawfully operating, whether the proposed employment met the duration and terms and conditions requirements, whether there was any adverse information known to Immigration, whether the nominator had a satisfactory record of compliance with workplace relations laws, and whether the requirements relating to the genuine need for the position and its location in regional Australia were met.

The Tribunal found that the applicant satisfied all the relevant requirements of regulation 5.19(4). It was satisfied that the business was actively and lawfully operating, and that the proposed employment of the nominee would be on a full-time basis for at least two years, with terms and conditions no less favourable than those offered to an Australian citizen or permanent resident. The Tribunal also noted the absence of adverse information known to Immigration and a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal determined that the position was located in regional Australia and that there was a genuine need for the nominee to be employed in that role, fulfilling the criteria under regulation 5.19(4)(h)(ii).

Consequently, the Tribunal set aside the previous decision under review and substituted it with a decision approving the nomination.