ASTECH GROUP (AUST)PTY LTD (Migration)

This matter concerned an appeal by ASTECH GROUP (AUST) PTY LTD against a decision to refuse the approval of a nomination for a Regional Sponsored Migration Scheme visa (subclass 187) in the Direct Entry Stream. The nominated position was for an Office Manager in Condobolin, NSW, with an annual salary of $55,000. The applicant sought to employ Mr Sandeep Kumar in this role. The core of the dispute revolved around whether the nominator met the various requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nomination.

The legal issues before the court were whether the nominator had satisfied the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the genuineness of the position, the absence of adverse information, satisfactory compliance with workplace relations laws, and the genuine need for the nominee to be employed in the nominated position. The court was required to determine if the position was located in regional Australia, if it could not be filled locally, and if the tasks of the position corresponded to an occupation specified by the Minister.

The court found that the nominator, a business producing waste bins since 2009 and employing 25 local staff, had a genuine need for the nominated Office Manager position. The business was located in Condobolin, NSW, which was designated as regional Australia. The court was satisfied that there was no adverse information known to the Department regarding the nominator and that the nominator had a satisfactory record of compliance with workplace relations laws. Furthermore, the court determined that the requirements of regulation 5.19(4)(h)(ii) were met, including the position being in regional Australia, a genuine need for the nominee, the position not being fillable locally, and the tasks corresponding to a specified occupation. The court also addressed procedural fairness, noting that while documents were submitted late, the Tribunal had complied with section 359AA of the Migration Act 1958 by orally providing particulars of information and inviting comment.

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