Vivig Family Trust & Rjwv Family Trust (Migration)

The case involved an application by the Vivig Family Trust and Rjwv Family Trust, operating as Hotel Phillip Island, for the approval of a nomination for a Chef position under the Direct Entry nomination stream. The dispute concerned whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the nomination to be approved. The matter was heard by Vanessa Plain.

The court was required to determine if the applicant had satisfied several criteria, including demonstrating a genuine need for the nominated employee, actively and lawfully operating a business in Australia, and ensuring the nominated position was not a labour-hire arrangement. Crucially, the court had to assess whether the applicant had made genuine and persistent attempts to recruit Australian citizens or permanent residents for the role, particularly in light of the challenges posed by the COVID-19 pandemic, and whether the tasks of the nominated position corresponded to the ANZSCO description for a Chef.

The court reasoned that the applicant had provided extensive documentation, including financial statements, BAS, PAYG information, an organisational chart, and an employment contract, which established a genuine need for the Chef position and that the business was actively and lawfully operating. It accepted evidence that recruitment of local candidates had been unsuccessful due to the impact of COVID-19 on the hospitality sector, satisfying the requirement that the position could not be filled by an Australian citizen or permanent resident in the local area. The court also found that the nominee's duties aligned with the ANZSCO description for a Chef and that a Regional Certifying Body had advised in favour of the nomination, confirming a genuine need for the position.

Consequently, the Tribunal set aside the previous decision and substituted it with a decision approving the nomination.