A.D & S.M MCLEAN PTY LTD (Migration)

The applicant, A.D & S.M MCLEAN PTY LTD, trading as St Anne’s Vineyard, sought approval for a nomination for a Marketing Specialist position under the Regional Sponsored Migration Scheme (RSMS) visa subclass 187, Direct Entry Stream, for Ms Thi Minh Thu LE. The primary dispute concerned whether the nominator had adequately demonstrated that the nominated position could not be filled by an Australian citizen or permanent resident living in or willing to move to the local area, as required by regulation 5.19(12)(c) of the Migration Regulations 1994. The matter was heard by De-Anne Kelly.

The court was required to determine if the nominator had met all the general requirements for approval of a nomination under regulation 5.19(4) and the specific requirements for the Direct Entry stream under regulation 5.19(9) and (12). Crucially, the court had to assess whether the evidence presented satisfied the requirement that the nominated position could not be filled by an Australian citizen or permanent resident in the relevant local area, and whether the nominator had genuinely explored recruitment options.

The court found that the nominator had lodged the application in the approved form, identified the position and nominee, and met other general application requirements under regulation 5.19(2) and (4). It also found no adverse information, no mandatory licensing issues, and a satisfactory record of compliance with employment laws. However, the court was not satisfied that the nominator had met the requirement under regulation 5.19(12)(c) that the position could not be filled by an Australian citizen or permanent resident. This was because the evidence of recruitment efforts, including job advertisements and contact with a recruitment agent, was deemed insufficient to demonstrate that the local labour market had been reasonably exhausted. The court noted that the job offer to the nominee was made prior to the completion of the advertising period and that claims of contacting a local recruitment agent were unsubstantiated by evidence.

Consequently, the court determined that subregulation 5.19(12) was not met, which in turn meant that paragraph 5.19(9)(j) and paragraph 5.19(4)(f) were not met. The decision under review was set aside, and a decision approving the nomination was substituted.