A&G DHALIWAL PTY LTD (Migration)

This matter concerned an application by A&G Dhaliwal Pty Ltd for approval of a nomination for a position under the Direct Entry nomination stream. The dispute centred on whether the nominated position met the requirements of regulation 5.19(4) of the Migration Regulations 1994. The decision was made by Member Peter Emmerton of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant, A&G Dhaliwal Pty Ltd, had satisfied all the criteria stipulated in regulation 5.19(4) for the approval of the nominated position. This involved assessing whether the nominated position was genuine, whether the terms and conditions of employment were appropriate, and whether the nominator had complied with relevant workplace relations laws and immigration requirements. The Tribunal was required to make findings of fact on disputed material matters and consider the evidence provided by the applicant and the nominator.

The Tribunal reasoned that the nominated position of Retail Manager (General) aligned with the applicant's substantial responsibilities, experience, and attributes. It noted that the nominating entity operated a mid-size retail business in Whyalla, South Australia, a regional city experiencing significant investment. The Tribunal found that there was a genuine need for the position, given the owner's other business interests and the challenges of recruiting experienced management for specialist retail businesses in regional areas. The Tribunal was satisfied that the salary offered was appropriate, the recruitment processes were sound, and a two-year contract with an extension provision was in place. Furthermore, the Tribunal considered the requirements of regulations 5.19(4)(e), (f), and (g), finding that the terms and conditions of employment were not less favourable than those offered to Australian citizens or permanent residents, that there was no adverse information known to Immigration, and that the nominator had a satisfactory record of compliance with workplace relations laws. The Tribunal also assessed the criteria under regulation 5.19(4)(h)(ii), specifically that the position was located in regional Australia, there was a genuine need for the paid position under the nominator's direct control that could not be filled by an Australian citizen or permanent resident, and that the tasks corresponded to an eligible occupation, with a Regional Certifying Body having issued a 'Satisfied' certificate.

Based on its findings, the Tribunal concluded that the applicant met all the requirements of regulation 5.19 for the approval of the nomination. Consequently, the Tribunal set aside the decision under review and substituted a decision approving the nomination.