Tipperrary Pty Ltd ATF Shahnai India House Unit Trust (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the approval of a nominated position by Tipperrary Pty Ltd ATF Shahnai India House Unit Trust. The applicant sought approval for a Cook position under the Direct Entry nomination stream. The Tribunal was required to determine whether the applicant met all the criteria stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nominated position.

The Tribunal considered each subregulation of 5.19(4) in turn. It found that the application was made in the approved form, accompanied by the prescribed fee, and included the necessary certification regarding conduct contravening s.245AR(1). The Tribunal was satisfied that there was a genuine need for a paid employee to work in the nominated position under the nominator's direct control, supported by evidence of the business's operations and customer volume. Furthermore, the nominator was found to be actively and lawfully operating a business in Australia, and the position was not related to labour hire. The Tribunal also confirmed that the employment contract stipulated full-time employment for three years, with no express exclusion of an extension, satisfying the term of employment requirement.

The Tribunal further addressed the remaining criteria, finding no adverse information known to Immigration about the nominator or associated persons, and a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal was satisfied that the tasks of the nominated position corresponded to those of a Cook as specified in the relevant legislative instrument, and that the applicant had met the training benchmark requirements, evidenced by receipts and a statutory declaration. Based on these findings, the Tribunal concluded that the applicant met all the requirements of regulation 5.19 for the approval of the nomination. The Tribunal set aside the original decision and substituted a decision approving the nomination.