1506173 (Migration)

The Administrative Appeals Tribunal considered an application by a nominator seeking approval of a nominated position under the Direct Entry stream. The dispute centred on whether the nominator met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nomination.

The Tribunal was required to determine if the nominator satisfied each of the criteria set out in regulation 5.19(4), specifically addressing whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, if the position was not labour-hire, if there was no adverse information known to Immigration, if the nominator had a satisfactory record of compliance with workplace relations laws, and crucially, whether the nominated position met the requirements concerning the tasks to be performed, a genuine need for the position, and training benchmarks.

The Tribunal reasoned that the applicant had met the requirements of regulation 5.19(4)(a) by submitting the application in the approved form, paying the prescribed fee, and identifying a need for a paid employee in the nominated position of Graphic Designer under the nominator's direct control. It found that the nominator was actively and lawfully operating its business, an Irish-themed sports bar and restaurant, satisfying regulation 5.19(4)(b). The Tribunal also determined that there was no adverse information known to Immigration and that the nominator had a satisfactory record of compliance with workplace relations laws, fulfilling regulations 5.19(4)(f) and (g) respectively. Regarding regulation 5.19(4)(h), the Tribunal found that as the applicant and position were located in metropolitan Melbourne, the criteria for positions not in regional Australia applied. It was satisfied that the nominated occupation of Graphic Designer was specified by the Minister and that the tasks corresponded to those of an occupation at ANZSCO Skill Level 1, with the applicant meeting the training benchmark requirements.

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