Y.M. PATEL & THE TRUSTEE FOR THE CEDAR CAFE (Migration)

This matter concerned an application by Y.M. Patel and the Trustee for the Cedar Cafe for approval of a nomination for a position under the Direct Entry nomination stream. The applicant sought to nominate a visa applicant for the role of Café or Restaurant Manager. The core dispute revolved around whether the nominator met the various requirements stipulated by Regulation 5.19(4) of the Migration Regulations 1994 for the approval of such a nomination.

The Tribunal was required to determine if the nominator had demonstrated a genuine need to employ a paid employee full-time for a minimum of two years, that the terms and conditions of employment offered were no less favourable than those provided to Australian citizens or permanent residents in equivalent roles, and that the business had a satisfactory record of compliance with workplace relations laws. Furthermore, the Tribunal had to assess whether the position itself met the criteria for a Café or Restaurant Manager and if there was a genuine need for the position that could not be filled by an Australian citizen or permanent resident.

The Tribunal found that the nominator, operating a substantial restaurant in regional Western Australia, had provided sufficient evidence to satisfy the requirements of Regulation 5.19(4). It accepted that the visa applicant's qualifications and experience aligned with the nominated occupation and that the business's operational scale and the challenges of recruiting in a regional area supported a genuine need for the position. The Tribunal also considered the remuneration offered to be within acceptable parameters and found no adverse information regarding the nominator or evidence of non-compliance with workplace relations laws.

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