Trustee For Red Rooster Halls Head Unit Trust (Migration)

The case of *Trustee For Red Rooster Halls Head Unit Trust (Migration)* concerned an application for approval of an employer nomination under the Direct Entry stream. The applicant, operating a Red Rooster business in Halls Head, Western Australia, sought to nominate a Retail Manager (General) for a position within their business. The core of the dispute revolved around whether the applicant met the various requirements stipulated in regulation 5.19(4) of the *Migration Regulations 1994* for the nomination to be approved.

The legal issues before the Tribunal included whether the application was compliant with the prescribed form and certification requirements, and crucially, whether there was a genuine need for the nominator to employ a paid employee under their direct control. The Tribunal was also required to determine if the nominator was actively and lawfully operating a business in Australia, if the nominated position's duties corresponded to the specified occupation of Retail Manager (General) as per ANZSCO, and if the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents. Furthermore, the Tribunal had to consider whether there was any adverse information concerning the nominator and whether the position could not be filled by an Australian citizen or permanent resident living in the same local area, given the regional location of the nominated position.

The Tribunal's reasoning focused on assessing each limb of regulation 5.19(4) against the extensive documentary and oral evidence presented. It found that the application was made in the approved form and that the business had demonstrated a genuine need for the nominated Retail Manager, supported by evidence such as an organisational chart, job description, and financial statements. The Tribunal was satisfied that the nominator was actively and lawfully operating its business, and that the nominee's duties substantially accorded with the ANZSCO description for a Retail Manager. Crucially, in relation to the regional aspect of the nomination, the Tribunal accepted that genuine and persistent recruitment attempts for Australian candidates had been unsuccessful, largely due to the impact of the COVID-19 pandemic, and that a Regional Certifying Body had advised in favour of the application.

Ultimately, the Tribunal found that the applicant had met all the requirements of regulation 5.19 for the approval of the nomination. Consequently, the decision under review was set aside, and a substituted decision approving the nomination was made.