Tony & Wally Pty Ltd (Migration)

The Administrative Appeals Tribunal (Cth) considered an application by Tony & Wally Pty Ltd for approval of a nomination for the position of Shop Manager under the Direct Entry stream. The dispute centred on whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the nomination to be approved. The applicant operated an auto mechanic service under a franchise agreement and sought to nominate an employee for the Shop Manager position, classified under ANZSCO 142111.

The Tribunal was required to determine if the applicant satisfied all the criteria stipulated in regulation 5.19(4). Specifically, this involved assessing whether the application was in the approved form, identified a genuine need for a paid employee under the nominator's direct control, and whether the nominator was actively and lawfully operating a business. Further considerations included the terms and conditions of employment, the absence of adverse information known to Immigration, satisfactory compliance with workplace relations laws, and the specific requirements related to the tasks of the position and the genuine need for it, particularly in a regional context.

The Tribunal's reasoning focused on evaluating the evidence presented against each subregulation of 5.19(4). It found that the application met the formal requirements, including the correct form and certification. Crucially, the Tribunal accepted that there was a genuine need for the Shop Manager position, supported by evidence of the business's operational structure and the applicant's efforts to fill the role. The Tribunal also confirmed that the business and the position were located in regional Australia, satisfying the criteria under regulation 5.19(4)(h)(ii). Furthermore, the Tribunal was satisfied that there was no adverse information concerning the nominator and that the company had a satisfactory record of compliance with workplace relations laws.

Consequently, the Tribunal concluded that Tony & Wally Pty Ltd met all the necessary requirements for the approval of the nomination. The decision under review was set aside, and a substituted decision approving the nomination was made.