X Sun & T Tang (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an employer nomination for a Café or Restaurant Manager position under the Direct Entry stream. The applicant, X Sun & T Tang, sought approval for a nominated position within their business, Jin Yang Chinese Restaurant. The core of the dispute revolved around whether the nominated position met the requirements of regulation 5.19(4) of the Migration Regulations 1994, particularly concerning the nominee's role and the nominator's business operations.

The Tribunal was required to determine if the applicant satisfied all the criteria stipulated in regulation 5.19(4) for the approval of the employer nomination. This included assessing whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, and if the nominated position was not a labour-hire arrangement. Furthermore, the Tribunal had to consider the term of employment, the terms and conditions of employment relative to Australian workers, the absence of adverse information known to Immigration, and satisfactory compliance with workplace relations laws. Crucially, the Tribunal also had to examine the tasks of the position, the genuine need for the nominee, and the relevant training requirements, specifically in the context of a regional Australian location.

In its reasoning, the Tribunal systematically addressed each subregulation of 5.19(4). It found that the application was in the approved form, included the necessary certification, and identified a genuine need for the nominee under the nominator's direct control. Evidence, including Business Activity Statements and Financial Statements, supported the finding that the nominator was actively and lawfully operating its restaurant business in regional Victoria. The Tribunal also concluded that the position was not a labour-hire arrangement and that there was no adverse information known to Immigration. The Tribunal was satisfied that the applicant met the requirements of regulation 5.19(4)(h)(ii), which pertains to positions located in regional Australia, finding a genuine need for the nominee, that the position could not be filled locally, and that the tasks corresponded to an ANZSCO occupation.

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