C FUXING & W.L JIANG (Migration)

This matter concerned an application by C Fuxing & W.L Jiang for approval of a nomination under the Direct Entry nomination stream. The dispute centred on whether the nominated position met the requirements of regulation 5.19(4) of the Migration Regulations 1994. The decision was made by Joanne Bakas, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicants had satisfied all the requirements for the approval of the nomination under regulation 5.19(4). This involved 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. The Tribunal also had to determine if the nominator was actively and lawfully operating a business in Australia, if the position was not a labour-hire arrangement, if there was no 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 the specific requirements of regulation 5.19(4)(h), particularly concerning positions located in regional Australia.

The Tribunal reasoned that the application met the formal requirements of regulation 5.19(4)(a) and that the nominator, C Fuxing & W.L Jiang, was actively and lawfully operating a business in Australia, as evidenced by ATO registration, ABN details, and financial records, satisfying regulation 5.19(4)(b). It also found that the position was not a labour-hire arrangement, and that there was no adverse information known to Immigration, nor any evidence of non-compliance with workplace relations laws, thus meeting regulations 5.19(4)(c), (f), and (g). The Tribunal focused on regulation 5.19(4)(h)(ii), which applies to positions in regional Australia, and found that the nominated position was located in regional Australia, there was a genuine need for the employee under the nominator's direct control, and that the tasks corresponded to a specified occupation.

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