Yaya's Hellenic Kitchen & Bar Pty Ltd ATF Yaya's Hellenic Kitchen & Bar Unit Trust (Migration)

The Administrative Appeals Tribunal considered an application by Yaya's Hellenic Kitchen & Bar Pty Ltd ATF Yaya's Hellenic Kitchen & Bar Unit Trust (the nominator) for approval of a nomination for a Cook position under the Regional Sponsored Migration Scheme, Direct Entry Stream. The nominator sought to employ Mr Sandeep Singh Khosa in Cairns, Queensland. The core of the dispute revolved around whether the nominator had demonstrated a genuine need for the nominated position and met all the regulatory requirements for approval.

The Tribunal was required to determine if the nominator satisfied the criteria set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, this involved assessing whether the application was made in the approved form, accompanied by the prescribed fee, and included the required certification regarding conduct contravening s 245AR(1) of the Migration Act 1958. Furthermore, the Tribunal had to ascertain if there was a genuine need for the nominator to employ a paid employee under their direct control, if the nominator was actively and lawfully operating a business, and if the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident. The Tribunal also had to consider whether there was any adverse information known to Immigration about the nominator or associated persons, and if the nominator had a satisfactory record of compliance with workplace relations laws. Finally, the Tribunal had to assess the requirements under regulation 5.19(4)(h), which included determining if the position was located in regional Australia and if there was a genuine need for the nominee to be employed in that role.

The Tribunal's reasoning focused on a detailed examination of each subregulation. It found that the application was compliant with the formal requirements, including the use of the approved form and payment of the fee. The Tribunal was satisfied that the nominator had identified a genuine need for a paid employee to work under their direct control, supported by oral evidence and payslips. It also confirmed that the business was located in Cairns, a designated regional area, and that the nominator met the criteria under regulation 5.19(4)(h)(ii). The Tribunal found no adverse information concerning the nominator and noted a satisfactory record of compliance with workplace relations laws.

Based on its findings that all the requirements of regulation 5.19 were met, the Tribunal set aside the original decision under review and substituted a decision approving the nomination.