KRISHNA KANT PTY LTD ATF THE TRUSTEE FOR THE DNP TRUST (Migration) [2019] AATA 304

Tribunal: Member Susan Trotter

The applicant was a business that owned and operated a number of restaurants in Queensland. The business applied to the Department of Immigration and Border Protection (the Department) for approval of the nomination of a Café or Restaurant Manager position in Australia for one of their restaurants. The Department rejected the application and the applicant applied to the AAT for a review.

Applicants seeking nomination approval must meet a list of requirements set out in the Migration Regulations 1994.^[1] The list contains requirements such as: the nominating business must be active and lawfully operating in Australia, there must be no adverse information known to Immigration and that the tasks of the position cannot be filled by an Australian citizen or permanent resident living in the same local area, to name a few.

The issue in this review primarily concerned the following requirements:

1. that the nominating business had a genuine need for the position^[2]
2. that the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument.^[3]

In its original decision, the Department was not satisfied there was a need for the position. However, after receiving further evidence form the applicant, the AAT found that there was a genuine need for the position. After comparing the tasks of the nominated position against those included in the Australia and New Zealand Standard Classification of Occupations (ANZSCO) occupation description of the same occupation, the AAT was satisfied that the tasks corresponded.

The AAT also considered the remaining requirements in the list and concluded, on the basis of the evidence, that the applicant satisfied them.

The AAT set aside the decision under review and substituted a decision approving the nomination.

Read the full decision on AustLII.