G F AND S H KEMPEN (Migration)

This matter concerned an application for approval of a nomination under the Direct Entry nomination stream for the occupation of Pig Farmer. The applicant, a family business operating a large piggery in regional New South Wales, sought to nominate an employee for this position. The Tribunal was required to determine whether the applicant met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nomination.

The central legal issues before the Tribunal were whether the applicant had satisfied the various criteria outlined in regulation 5.19(4). These included, but were not limited to, whether the application was in the approved form and identified a genuine need for a paid employee under the nominator's direct control, whether the nominator was actively and lawfully operating a business, and whether the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident. Crucially, the Tribunal also had to consider whether the position and its tasks corresponded to an occupation specified by the Minister in a relevant instrument, and in this instance, whether the position was located in regional Australia and there was a genuine need for the paid position that could not be filled locally.

The Tribunal found that the applicant had met the requirements of regulation 5.19(4)(a)(i) and (ii), establishing that the application was compliant and identified a critical need for the nominated position within the piggery's farrowing operations. It was satisfied that the nominator was actively and lawfully operating its business and had a satisfactory record of compliance with workplace relations laws. Furthermore, the Tribunal determined that the requirements of regulation 5.19(4)(h)(ii) were met, specifically that the position was located in regional Australia, there was a genuine need for the paid employee, and the tasks corresponded to an occupation specified in the relevant legislative instrument.

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