DWORLD AUSTRALIA PTY LTD (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Immigration to refuse the approval of a nominated position under the Direct Entry stream. The applicant, DWORLD AUSTRALIA PTY LTD, sought to nominate a Marketing Specialist for a full-time position in regional Australia. The Tribunal was tasked with determining whether the applicant met all the requirements for the approval of this nomination as set out in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal considered several legal issues, including whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, and if the nominated position was not a labour-hire arrangement. Crucially, the Tribunal also had to assess whether there was a genuine need for the position, if the terms of employment met the required standards, and whether there was any adverse information known to Immigration about the nominator that could not be disregarded. The Tribunal also examined the requirement for the position to be filled by a foreign national when it could not be filled by an Australian citizen or permanent resident in the local area.

In its reasoning, the Tribunal found that the applicant had met the formal requirements of the application, was actively operating a lawful business, and the position was not a labour-hire arrangement. It also determined that the terms of employment were satisfactory and that the nominator had a satisfactory record of compliance with workplace laws. Regarding adverse information, the Tribunal noted a previous investigation linked to a migration agent acting for the applicant, but concluded this did not implicate the applicant directly and was reasonable to disregard. Furthermore, the Tribunal was satisfied that there was a genuine need for the Marketing Specialist role, that it could not be filled locally, and that the tasks corresponded to an ANZSCO skill level 1, 2, or 3 occupation.

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