The Trustee for Mahal Family Trust (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered an application by The Trustee for Mahal Family Trust, trading as Andy’s Pizza and Pasta, seeking review of a decision to refuse a nomination for a Restaurant Manager position under the Direct Entry stream of the Regional Sponsored Migration Scheme (visa subclass 187). The nomination was made in favour of Ms Jindpreet Kaur Mann. The applicant provided extensive documentation with the original application and subsequent submissions, including business extracts, lease agreements, tax returns, business activity statements, financial statements, and an employment contract.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether the nominator was actively and lawfully operating a business in Australia, had the financial capacity to employ the nominee for at least two years, and whether the terms and conditions of employment were appropriate and not less favourable than those offered to Australian citizens or permanent residents in equivalent roles. The Tribunal also considered whether the applicant had satisfied the criteria for the Direct Entry nomination stream, as opposed to the Temporary Residence Transition stream.

The Tribunal's reasoning focused on the applicant's failure to satisfy the requirements of regulation 5.19(4). While the applicant provided a significant amount of documentation, the Tribunal was not satisfied that all the necessary criteria were met. Crucially, the Tribunal noted that the applicant had not sought to satisfy the requirements of the Temporary Residence Transition Nomination stream, and therefore had not met the requirements of regulation 5.19(3).

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.