The Nossir Family Trust (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the nomination of a position for the Nossir Family Trust. The dispute centred on whether the applicant met the requirements for approval of the nomination under the Direct Entry stream of the relevant migration regulations. The Tribunal, constituted by Member Peter Emmerton, considered evidence presented by the applicants, including their submissions, qualifications, and the nominating entity's operational details.

The primary legal issue before the Tribunal was to determine if the nominated position and the visa applicant satisfied all the criteria stipulated in regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether the nominating entity was actively and lawfully operating a business, whether there was a genuine need for the position, if the nominee's tasks aligned with the ANZSCO description for a Retail Manager (General), and if the terms and conditions of employment were equivalent to those offered to Australian citizens or permanent residents. The Tribunal also had to consider whether there was any adverse information known to Immigration about the nominator and if the nominator had a satisfactory record of compliance with workplace relations laws.

The Tribunal's reasoning focused on the specific requirements of regulation 5.19(4). It found that the visa applicant's qualifications and experience substantially aligned with the duties of a Retail Manager (General). The Tribunal was satisfied that the nominating entity, a substantial Middle Eastern restaurant in regional Western Australia, faced genuine recruitment challenges due to its location and the limited pool of suitable candidates, as evidenced by extensive advertising and a lengthy recruitment process. The Tribunal also found that the terms and conditions of employment met the required standards, that there was no adverse information known to Immigration, and that the nominator had a satisfactory record of compliance with workplace relations laws. Furthermore, the Tribunal concluded that there was a genuine need for the position under the nominator's direct control, which could not be filled by an Australian citizen or permanent resident, and that the tasks corresponded to an occupation at the appropriate ANZSCO skill level.

Consequently, the Tribunal set aside the original decision and substituted a new decision approving the nomination.