ALLSHELTER PTY LTD (Migration)

This matter concerned an application by Allshelter Pty Ltd for approval of a nominated position for a Metal Fabricator/Welder. The dispute arose when the nomination was refused, with the primary issue being the failure to provide a copy of the written contract of employment to the Minister. The Administrative Appeals Tribunal (AAT) reviewed the decision.

The legal issues before the Tribunal were whether the requirements of the Migration Regulations 1994, specifically concerning the nominated occupation, adverse information, and the terms and conditions of employment, had been met. Crucially, the Tribunal had to determine if the failure to provide the employment contract constituted a fatal flaw in the nomination application, or if the circumstances, including the contract being sighted by the Tribunal, allowed for its approval.

The Tribunal reasoned that while Regulation 2.72(10)(h)(ii) ordinarily requires a written contract of employment to be provided to the Minister, the director's statement clearly indicated that the contract had been provided to the migration agent, and its omission from the submission was due to an administrative error by that agent. The Tribunal also noted that it had sighted the contract during its review. Considering the director's detailed explanation and the fact that all other criteria under Regulation 2.72 appeared to be satisfied, the Tribunal found that the requirements for the nomination to be approved were met.

Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision that the nomination be approved.