Bernini Stone & Tiles Pty Ltd (Migration)

This matter concerned an application by Bernini Stone & Tiles Pty Ltd for approval of a nomination under the Direct Entry stream for the occupation of Accountant (General). The Tribunal was required to determine whether the applicant met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nomination.

The legal issues before the Tribunal included whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, if the nominated position was a labour-hire arrangement, if there was any adverse information known to Immigration, if the nominator had a satisfactory record of compliance with workplace relations laws, and whether the tasks of the position corresponded to an occupation specified by the Minister, with a genuine need for the position and appropriate training requirements met.

The Tribunal found that the applicant met all the requirements of regulation 5.19(4). Specifically, the application was in the approved form, accompanied by the prescribed fee, and identified a need for a paid employee under the nominator's direct control. The Tribunal was satisfied that Bernini Stone & Tiles Pty Ltd was actively and lawfully operating a business in Australia and that the nominated position was not a labour-hire arrangement. Furthermore, no adverse information was known to Immigration, and the nominator demonstrated a satisfactory record of compliance with workplace relations laws, despite a past unfair dismissal claim. Crucially, the Tribunal found that the position of Accountant (General) was located in regional Australia, there was a genuine need for the role, it could not be filled by a local Australian resident, and the tasks corresponded to the specified occupation.

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