1605070 (Migration)

The Administrative Appeals Tribunal considered whether to approve a nomination for a position under the Direct Entry stream, as set out in regulation 5.19(4) of the Migration Regulations 1994. The applicant sought to have a previous decision refusing the nomination set aside and substituted with a decision approving it.

The Tribunal was required to determine if the applicant met all the requirements stipulated in regulation 5.19(4). These included whether the application was in the approved form and accompanied by the prescribed fee, and if the nominator had identified a genuine need for a paid employee under their direct control. The Tribunal also had to assess if the nominator was actively and lawfully operating a business in Australia, if the position was not a labour-hire arrangement, and if the terms of employment met specific duration and condition requirements. Furthermore, the Tribunal needed to consider if the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents in equivalent roles, if there was no adverse information known to Immigration, and if the nominator had a satisfactory record of compliance with workplace relations laws. Finally, the Tribunal had to determine if the tasks of the position met the genuine need and training benchmark requirements.

The Tribunal found that the application was compliant with the form and fee requirements, and that the nominator had demonstrated a genuine need for the position, supported by evidence of the nominee's previous employment and the expiry of their prior visa. The nominator was found to be actively and lawfully operating a business, and regulation 5.19(4)(c) concerning labour hire was deemed not applicable. The employment agreement indicated the position would continue indefinitely, satisfying the duration requirement. The nominee's salary of $60,000 was found to be no less favourable than the award rate for a management consultant, meeting the terms and conditions requirement. No adverse information was known to Immigration, and there was no evidence of non-compliance with workplace relations laws. The tasks of the position corresponded to those of a Management Consultant (ANZSCO 2247-11) and would be performed in Australia, satisfying the requirements of regulation 5.19(4)(h).

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