Atlantic Petroleum Pty Ltd (Migration)

This matter concerned an application by Atlantic Petroleum Pty Ltd for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant sought approval for a Retail Manager position to be filled by Shavinder Kaur at their service station in Lake Cargelligo, New South Wales. The core dispute revolved around whether Atlantic Petroleum Pty Ltd met the various requirements stipulated in regulation 5.19 of the Migration Regulations 1994 for the approval of such a nomination. The decision was made by Mr S Norman.

The Tribunal was required to determine if Atlantic Petroleum Pty Ltd had satisfied all the criteria under regulation 5.19(4) for the approval of the nominated position. This included assessing whether the application was in the approved form, accompanied by the prescribed fee, and identified a genuine need for a paid employee under the nominator's direct control. Further, the Tribunal had to consider if the nominator was actively and lawfully operating a business, if the terms and conditions of employment were no less favourable than those offered to local workers, and if there was any adverse information known to Immigration. The Tribunal also had to be satisfied that the nominator had a satisfactory record of compliance with workplace relations laws and that the position itself met specific criteria, including its location in regional Australia, a genuine need for the role, and that the tasks corresponded to an occupation specified by the Minister.

In its reasoning, the Tribunal found that Atlantic Petroleum Pty Ltd had met the procedural requirements of the application, including the identification of a need for the position. It was satisfied that there was no adverse information known to Immigration concerning the nominator and that the company had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal determined that the position of Retail Manager was located in regional Australia, that there was a genuine need for the role which could not be filled by a local Australian worker, and that the tasks of the position corresponded to an occupation specified in the relevant legislative instrument. The Tribunal also noted that a Regional Certifying Body had advised the Minister regarding the genuine need for the position and its inability to be filled locally.

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