Adams and Jones Real Estate Pty Ltd ATF CDare Unit Trust (Migration)

This matter concerned an application by Adams and Jones Real Estate Pty Ltd ATF CDare Unit Trust for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The delegate had refused the nomination application, finding that the nominator had not demonstrated a genuine need for the position. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of Regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the identification of a need for the nominated position and whether that need could be met by a locally available Australian citizen or permanent resident. The Tribunal was required to assess the evidence provided by the applicant to determine if the nominated position of Marketing Specialist was genuinely required and if there was a lack of suitable local candidates.

The Tribunal reasoned that while Regulation 5.19(4)(a)(ii) requires an identified need, this must be assessed for veracity and not merely accepted as a declaration. However, for positions located in regional Australia, the Tribunal considered it more appropriate to assess the genuine need under Regulation 5.19(4)(h)(ii)(B). The Tribunal found that the nominated position was located in regional Australia and that there was a genuine need for the Marketing Specialist role, particularly in building long-term relationships with the Chinese market, which could not be filled by a local candidate. The Tribunal also satisfied itself that the applicant met the other requirements of Regulation 5.19(4), including being actively and lawfully operating a business, having no adverse information known to Immigration, and demonstrating satisfactory compliance with workplace relations laws.

Accordingly, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.