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Tribunal: Member S Trotter

The applicant asked the Administrative Appeals Tribunal (AAT) to review a decision made by the then Department of Immigration and Border Protection (the Department) refusing to approve the nomination of a position in Australia.[1]

The applicant, who runs a chain of successful Indian restaurants in Queensland, employed a restaurant manager (the employee) to manage one of their restaurants. At the time of application, the applicant company was operating two restaurants; with a third owned by another staff member but remaining part of the restaurant group. The employment of three Restaurant Managers for two restaurants was in line with operational demands and equated to three full-time positions.

The application, through the Direct Entry nomination stream, was refused because the Department was not satisfied the applicant had identified a need for a paid employee under the direct control of the nominator.[2] The AAT decided this requirement was concerned only with an assertion of a need, rather than a genuine need, and that it was met because there was statement by the Director that an employee was needed due to a recent vacancy. The nominated employee previously worked on a full-time basis across two restaurants and is now the sole full-time Restaurant Manager for one location.

The AAT felt that the issue of a genuine need would be more appropriately considered under regulation 5.19(4)(h)(ii)(B), which requires that there be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Based on the documentation provided and searches undertaken by the Tribunal, this was satisfied.

The AAT also considered the other requirements of regulation 5.19 and was further satisfied that the applicant met these.

Based on these findings the Tribunal was satisfied the applicant met the requirements of r.5.19 for approval of the nominated of the position in Australia.

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[1] Under r.5.19(4) of the Migration Regulations 1994 (the Regulations).

[2] r.5.19(4)(a)(ii)