C & L Family Trust (Migration)

The Administrative Appeals Tribunal considered a decision concerning the approval of an employer nomination for a position. The applicant, C & L Family Trust, sought approval of its nomination for a Retail Manager position, which had been refused by the Department of Immigration. The dispute centred on whether the nominating entity had demonstrated a genuine need for the nominated employee and whether the terms and conditions of employment met regulatory requirements.

The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under the Direct Entry stream of the Employer Nomination scheme, specifically as set out in regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether there was a genuine need for the position, whether it could be filled by an Australian citizen or permanent resident, and whether the terms and conditions of employment were no less favourable than those offered to Australian workers in equivalent roles. The Tribunal also considered requirements relating to the nominator's compliance with workplace relations laws and the absence of adverse information known to Immigration.

The Tribunal's reasoning involved a detailed examination of the evidence presented, including the employment contract, salary details, and the recruitment process undertaken. It found that the nominated salary was appropriate and reflective of the nominee's experience, and that the terms and conditions of employment were equivalent to those for Australian workers in similar positions, thus satisfying regulation 5.19(4)(e). The Tribunal was also satisfied that the nominator had a satisfactory record of compliance with workplace relations laws and that there was no adverse information known to Immigration, meeting regulations 5.19(4)(g) and 5.19(4)(f) respectively. Crucially, the Tribunal accepted that there was a genuine need for the position, which could not be filled by an Australian citizen or permanent resident, and that the tasks of the position corresponded to an occupation at the required skill level, fulfilling regulation 5.19(4)(h)(ii).

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