BGA Trading Pty Ltd (Migration)

The Administrative Appeals Tribunal considered an application by BGA Trading Pty Ltd for approval of a nomination for a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The nominated position was that of a store manager in a regional area, and the nominee was the brother-in-law of a director of the applicant company. The core of the dispute revolved around whether the applicant had demonstrated a genuine need for the position and that it could not be filled by a local Australian resident, as well as whether the nominee's duties aligned with the relevant ANZSCO classification.

The Tribunal was required to determine if the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the position was located in regional Australia, if there was a genuine need for the nominee to be employed, if the position could not be filled locally, and if the tasks of the position corresponded to an occupation specified in the relevant legislative instrument. The Tribunal also considered whether the applicant had a satisfactory record of compliance with workplace relations laws and if there was any adverse information known to the Department of Home Affairs.

The Tribunal's reasoning focused on the evidence presented, including extensive documentation relating to the applicant's business operations, financial standing, and recruitment efforts, as well as the nominee's qualifications and employment history. The Tribunal noted that the applicant's business was located in Gulargambone, New South Wales, a designated regional area. Crucially, the Tribunal found that the applicant had provided evidence of advertising for the position and that it could not be filled locally. The Tribunal also compared the duties of the nominated position with the ANZSCO classification for Retail Manager (General) and was satisfied that they corresponded. The Tribunal concluded that the applicant had met the requirements of regulation 5.19(4), including demonstrating a genuine need for the position and that the nominee's qualifications and experience were suitable.

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