The Trustee for Pianta Unit Trust (Migration)

The Administrative Appeals Tribunal considered a review of a decision concerning a nomination under the Direct Entry stream for a Café or Restaurant Manager. The applicant, The Trustee for Pianta Unit Trust, sought approval for a nomination, which had been refused by the Department. The Tribunal was tasked with determining whether the nomination met the requirements of regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the nominated position genuinely required a paid employee under the nominator’s direct control, whether the position could not be filled by an Australian citizen or permanent resident, and whether the nominator and the nominated position satisfied all other relevant criteria under regulation 5.19(4). This included assessing the applicant's qualifications and experience, the terms and conditions of employment, the nominator's compliance with workplace relations laws, and the absence of adverse information known to the Department.

The Tribunal reasoned that the nominating entity, operating a substantial restaurant and coffee roaster in a regional area of Western Australia, demonstrated a genuine need for a Café or Restaurant Manager. The Tribunal found that the applicant's skills and experience aligned with the requirements of the nominated occupation. Crucially, the Tribunal considered the challenges of recruitment and retention in regional hospitality, exacerbated by recent border closures and migration deficits, concluding that the position could not be readily filled by an Australian citizen or permanent resident. The Tribunal was satisfied that the remuneration and employment conditions were equivalent to those offered to Australian workers in similar roles and that the nominator had a satisfactory record of compliance with relevant laws.

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