Swanstar Nominees Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a nomination application made by Swanstar Nominees Pty Ltd for a Retail Manager (General) position. The dispute centred on whether the nominated position's duties aligned with the ANZSCO description for a Retail Manager (General) and whether the nominator genuinely required a paid employee for this role under their direct control. The Tribunal was tasked with determining if the nomination met the requirements for approval under the Direct Entry stream, specifically as outlined in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to assess several criteria under regulation 5.19(4). These included whether the application was in the approved form and accompanied by the prescribed fee, and whether there was a genuine need for a paid employee under the nominator's direct control. Crucially, the Tribunal had to determine if the tasks of the nominated position corresponded with the ANZSCO description for a Retail Manager (General), considering the specific operational context of the nominator's business, which involved operating multiple McDonald's franchises. The Tribunal also examined requirements relating to the nominator's business operations, employment terms, compliance with workplace relations laws, and the absence of adverse information.

The Tribunal reasoned that while the nominator's business operated within the franchise paradigm of McDonald's, the evidence presented indicated a high-level managerial role. The nominator, Swanstar Nominees Pty Ltd, operated five McDonald's stores with significant turnover and employed a large number of staff. The individuals responsible for Swanstar Nominees were not involved in the day-to-day operations of individual restaurants but focused on the strategic direction and profitability of the entire company, including expansion plans and engagement with McDonald's Australia on global matters. The Tribunal found that the Restaurant Manager role, as defined within the McDonald's organisational structure, was responsible for the quality, systems, people, and profit of a restaurant, and that the nominated position at the Melville restaurant fell within this scope. The Tribunal was satisfied that the requirements of regulation 5.19(4), including the genuine need for the position and the correspondence of its tasks to the ANZSCO description, were met.

Consequently, the Tribunal set aside the original decision and substituted a decision approving Swanstar Nominees Pty Ltd's nomination.