T N LUU AND M L LY (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered an application by T N LUU and M L LY concerning a refusal to approve a nomination for a Café or Restaurant Manager position under the Direct Entry nomination stream. The core of the dispute revolved around whether the nominated position met the requirements stipulated in the Migration Regulations 1994.

The Tribunal was required to determine if the applicants had satisfied all the criteria for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the terms and conditions of employment for the nominated position would be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same location, as required by regulation 5.19(4)(e).

The Tribunal reasoned that it lacked contemporary information to be satisfied that the terms and conditions of employment for the nominated position would be no less favourable than those offered to an Australian citizen or permanent resident in an equivalent role. Consequently, the Tribunal concluded that the requirements of regulation 5.19(4)(e) were not met. As the applicants had not sought to satisfy the criteria for the Temporary Residence Transition Nomination stream under regulation 5.19(3), the Tribunal found that the nomination could not be approved. The Tribunal affirmed the decision under review to refuse the nomination.