Allworthy Pty Ltd t/as the P.E.G. Family Trust (Migration)

This matter concerned an application by Allworthy Pty Ltd t/as the P.E.G. Family Trust for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant sought to nominate a position for a Baker, ANZSCO 351111, for a visa applicant whose qualifications and experience were considered to align with the duties of that occupation. The core dispute revolved around whether the nominating entity met the various requirements stipulated in Regulation 5.19 of the Migration Regulations 1994 for the approval of such a nomination.

The Tribunal was required to determine whether the nominating entity satisfied all the criteria under Regulation 5.19(4) for the approval of the nominated position. Specifically, the Tribunal needed to assess if the application was made in the approved form, if there was a genuine need for a paid employee under the nominator's direct control, and if the nominator was actively and lawfully operating a business in Australia. Further issues included whether the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident, if there was any adverse information known to Immigration, and if the nominator had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal had to consider whether the tasks of the nominated position corresponded to the specified occupation and whether the nominator met the relevant training requirements or had a plan to do so.

The Tribunal's reasoning focused on a detailed assessment of the evidence presented, noting that substantially more evidence was available to it than had been before the original delegate. It found that the application was compliant with the formal requirements, including the payment of the prescribed fee and the identification of a genuine need for a Baker given the substantial size and seven-day operation of the retail bakery business. The Tribunal was satisfied that the remuneration offered for the position fell within the mid quartiles for similar roles and that the terms and conditions of employment were equivalent to those for Australian workers. Furthermore, it found no adverse information concerning the nominator and a satisfactory record of compliance with workplace relations laws. The Tribunal concluded that the tasks of the position corresponded to the specified occupation and that the nominator, having operated for over 12 months, met the training requirements.

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