Cherrabah Management Services Pty Ltd (Migration)

Cherrabah Management Services Pty Ltd (the applicant) sought judicial review of a decision by the Department of Immigration and Border Protection to refuse its application for approval of a nominated position under the Temporary Residence Transition stream. The applicant argued that the delegate erred in finding that it had not met certain requirements of Regulation 5.19(3) of the Migration Regulations 1994.

The primary legal issues before the court were whether the applicant had satisfied the requirements of Regulation 5.19(3)(g), concerning adverse information known to the Department, and Regulation 5.19(3)(h), relating to a satisfactory record of compliance with workplace relations laws. The court also considered whether the applicant had met the requirements of Regulation 5.19(3)(a), which pertains to the application being in the approved form, accompanied by the prescribed fee, and identifying a genuine need for a paid employee.

The court found that the applicant had met the requirements of Regulation 5.19(3)(a), noting that the online application process ensured compliance with form and fee requirements, and that a genuine need for the nominated employee was identified. Regarding Regulation 5.19(3)(g), the court reasoned that a letter from the Australian Border Force dated 20 September 2018, indicating satisfactory compliance with sponsorship requirements, provided reasonable grounds to disregard previously identified adverse information from a site visit on 20 July 2017. This adverse information, which suggested the nominee was not working in the nominated position or only in a limited capacity, was considered to be of diminished relevance due to subsequent events and compliance monitoring. The court also found that no information had been presented to suggest the applicant had anything other than a satisfactory record of compliance with workplace relations laws, thus satisfying Regulation 5.19(3)(h).

Consequently, the court set aside the decision under review and substituted a decision approving the nomination.