Gem (Aust) Pty Ltd (Migration)

This matter concerned an application by Gem (Aust) Pty Ltd for approval of a nomination under the Direct Entry stream of the Regional Sponsored Migration Program. The applicant sought to nominate a position of Retail Manager (General) (ANZSCO 142111) for Mr Taranjeet Singh Virk, with a nominated salary of $55,328 per annum. The applicant operated a service station in Merriwa, New South Wales. The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant's nomination application was compliant, whether the nominator was actively and lawfully operating a business in Australia, whether there was any adverse information known to Immigration, whether the nominator had a satisfactory record of compliance with workplace relations laws, and crucially, whether the nominated position met the criteria under regulation 5.19(4)(h). This latter regulation contained alternative requirements relating to the tasks of the position, a genuine need for the nominee, and specific training or regional employment considerations.

The Tribunal found that the applicant had met the requirements of regulation 5.19(4)(a) by lodging a compliant application that identified a need for the nominated employee. It was also satisfied that the nominator was actively and lawfully operating its business, that no adverse information was known to Immigration, and that the nominator had a satisfactory record of compliance with workplace relations laws, satisfying regulations 5.19(4)(b), (f), and (g) respectively. Critically, the Tribunal determined that the applicant met the requirements of regulation 5.19(4)(h)(ii), finding that the position was located in regional Australia, there was a genuine need for the nominee, and that the nominated occupation corresponded to a specified occupation.

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