CICERO MANAGEMENT PTY LTD (Migration)

This matter concerned an application by CICERO MANAGEMENT PTY LTD for approval of a nomination under the Direct Entry stream of the Migration Regulations 1994. The delegate had refused to approve the nomination, finding that the applicant had not satisfied the requirements of regulation 5.19(4)(a) because it had not identified a genuine need for a third Hotel Manager when it already employed a Hotel Manager and a Night Manager. The Tribunal was required to determine whether the delegate's decision was correct.

The Tribunal considered whether the applicant had met all the requirements for approval of the nomination under regulation 5.19(4). Specifically, it examined whether the application was in the approved form, accompanied by the prescribed fee, and identified a need for the nominator to employ a paid employee under its direct control, as required by regulation 5.19(4)(a). The Tribunal also assessed whether the nominator was actively and lawfully operating a business in Australia (regulation 5.19(4)(b)), whether the position was not labour-hire (regulation 5.19(4)(c)), the term of employment (regulation 5.19(4)(d)), and whether the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents (regulation 5.19(4)(e)). Furthermore, the Tribunal considered whether there was any adverse information known to Immigration (regulation 5.19(4)(f)) and whether the nominator had a satisfactory record of compliance with workplace relations laws (regulation 5.19(4)(g)). Finally, the Tribunal addressed the requirements relating to the tasks of the position, a genuine need for the position, and training requirements under regulation 5.19(4)(h), particularly focusing on the alternative pathway for positions located in regional Australia.

The Tribunal reasoned that regulation 5.19(4)(a) merely requires the applicant to identify a need to employ a paid employee, which it had done in its nomination form. The delegate's concern about the existing staffing levels was therefore misplaced in relation to this specific subregulation. The Tribunal found that the applicant had satisfied all other applicable requirements of regulation 5.19(4), including that the business was actively operating, the position was not labour-hire, the employment terms were appropriate, there was no adverse information, and workplace relations laws had been complied with. Crucially, in relation to regulation 5.19(4)(h)(ii), the Tribunal was satisfied that the position was located in regional Australia, there was a genuine need for the paid position, and it could not be filled by a local Australian citizen or permanent resident.

The Tribunal concluded that the applicant met all the requirements for approval of the nomination. Accordingly, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.