Vishal Sirohi ATF RS Sirohi Family Trust (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a nomination for a visa under the Employer Nomination Scheme (ENS) Direct Entry stream. The applicant, Vishal Sirohi ATF RS Sirohi Family Trust, sought approval for a nominated position of Cook. The core dispute revolved around whether the nominating entity met the requirements for approving the nomination, particularly concerning the financial capacity to employ the identified person for at least two years and the genuine need for the position.

The Tribunal was required to determine if the applicant satisfied all the criteria stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of an employer nomination. This included assessing whether the application was in the approved form, accompanied by the prescribed fee, and identified a genuine need for a paid employee under the nominator's direct control. Furthermore, the Tribunal had to consider if the nominator was actively and lawfully operating a business in Australia, if the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents, and if there was no adverse information known to Immigration about the nominator. The Tribunal also had to assess compliance with workplace relations laws and, crucially, whether the nominated position was located in regional Australia, if there was a genuine need for the position that could not be filled by an Australian citizen or permanent resident, and if the tasks of the position corresponded to an eligible occupation.

In its reasoning, the Tribunal found that the nominating entity, a mid-size Indian cuisine restaurant in Perth, Western Australia, met the requirements of regulation 5.19(4). It was satisfied that the application was lodged correctly, the fee was paid, and there was a genuine need for a Cook, given the restaurant's size and operating hours, requiring a minimum of two cooks. The Tribunal noted the visa applicant's relevant qualifications and experience aligned with the Cook occupation. It also found that the terms and conditions of employment were equivalent to those offered to Australian workers in similar roles and that there was no adverse information known to Immigration. The Tribunal was satisfied that the nominator had a satisfactory record of compliance with workplace relations laws. Regarding the specific requirements of the Direct Entry stream under regulation 5.19(4)(h)(ii), the Tribunal accepted that the position was located in regional Australia, there was a genuine need for the role, and it could not be filled by a local Australian worker.

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