Swanstar Nominees Pty Ltd The Trustee for Creasey Family Trust (Migration)

This matter concerned an application by Swanstar Nominees Pty Ltd (the applicant) for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant sought to nominate a Retail Manager (General) position. The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal considered several regulatory requirements. It first confirmed that the application was made in the approved form, accompanied by the prescribed fee, and identified a need for a paid employee under the nominator's direct control, as required by regulation 5.19(4)(a). The Tribunal was satisfied that the applicant was actively and lawfully operating a business in Australia and directly operated that business, fulfilling regulation 5.19(4)(b). It also found that the nominated position was within the applicant's business activities and not for hire to unrelated businesses, satisfying regulation 5.19(4)(c). Furthermore, the Tribunal was satisfied that the terms and conditions of employment would be no less favourable than those provided to an Australian citizen or permanent resident for equivalent work, meeting regulation 5.19(4)(e). The Tribunal also found no adverse information known to Immigration concerning the nominator, and that the nominator had a satisfactory record of compliance with workplace relations laws, satisfying regulations 5.19(4)(f) and (g) respectively.

Crucially, the Tribunal examined regulation 5.19(4)(h), which contains several alternative requirements. The applicant provided evidence that they operate five McDonald's stores with a significant annual turnover and employ a substantial workforce. The evidence indicated that the applicant's directors, including Mr. Creasey, focus on the strategic direction and profitability of the company, with day-to-day operations managed by Restaurant Managers. The Tribunal noted the applicant's intention to expand its business and Mr. Creasey's involvement in external McDonald's committees. The Tribunal was satisfied that the genuine need for the nominated position, the tasks of the position corresponding to the occupation, and the applicability of the occupation to the proposed employee were met. The Tribunal also considered the location of the business and the genuine need for the position, which could not be filled by a local Australian citizen or permanent resident.

Based on its findings, the Tribunal concluded that the applicant met all the requirements of regulation 5.19 for the approval of the nomination. Accordingly, the Tribunal set aside the decision under review and substituted a decision approving the nomination.