Gawler River Tomatoes Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the approval of a nominated position under the Direct Entry nomination stream. The applicant, Gawler River Tomatoes Pty Ltd, sought approval for a "nursery person" position. The central dispute revolved around whether the nominated position was genuine and whether the applicant could offer the nominee employment for at least two years, given the complex interrelationship between Gawler River Tomatoes Pty Ltd and related entities involved in tomato growing and labour hire.

The Tribunal was required to determine if Gawler River Tomatoes Pty Ltd met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the position was genuine, whether the applicant could provide employment for at least two years, and whether the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident. The Tribunal also considered whether the position was under the nominator's direct control and could not be filled by a local Australian resident.

The Tribunal's reasoning focused on the evidence presented by Mr. Kapiris, who explained the operational structure of the group of companies involved in tomato growing. Despite the applicant company, Gawler River Tomatoes Pty Ltd, not directly selling tomatoes or showing significant profit from sales in some years due to the allocation of expenses and income within the group, the Tribunal was satisfied that the overall tomato growing operation was profitable and supported by the company. The Tribunal accepted that the nominee's labour was hired to a related business, Gawler River Farms, but found that Gawler River Tomatoes Pty Ltd paid the nominee and drew its profit from the tomato growing activities. This arrangement, coupled with evidence of the company's expansion into hydroponics and the need for the nominee's labour in the greenhouses, led the Tribunal to conclude that there was a genuine need for the position and that the applicant was maintained by the nominee's work. The Tribunal also found that the position met the requirements of regulation 5.19(4)(h)(ii), including being located in regional Australia, having a genuine need for the position under the nominator's direct control, and being unable to be filled by a local Australian resident.

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