Guru Painting Services Pty Ltd (Migration)

This matter concerned an application by Guru Painting Services Pty Ltd for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant sought to nominate a Painting Trades Worker. The Tribunal was required to determine whether the nomination met all the requirements set out in regulation 5.19(4) of the Migration Regulations 1994.

The legal issues before the Tribunal included whether the nomination application was compliant, if the nominator was actively and lawfully operating a business in Australia, if the nominated position was not a labour-hire arrangement, and if the terms of employment for the proposed visa holder met specific criteria regarding duration and the possibility of extension. Further issues concerned whether the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident, the absence of adverse information known to the Department, and satisfactory compliance with workplace relations laws. Crucially, the Tribunal also had to consider whether the tasks of the nominated position corresponded to an eligible occupation, if there was a genuine need for the position, and if it could not be filled by a local Australian resident, particularly given the business was located in regional Australia.

The Tribunal found that the applicant had satisfied all the requirements of regulation 5.19(4). It was satisfied that the application was in the approved form, the nominator was actively operating a painting services business in regional Victoria, and the position was not a labour-hire arrangement. The Tribunal also considered salary data and advertisements to conclude that the terms and conditions of employment would be no less favourable than those for an Australian worker. Furthermore, there was no adverse information known to the Department, and the nominator had a satisfactory record of compliance with workplace relations laws. Regarding the specific requirements for regional nominations, the Tribunal was satisfied that there was a genuine need for a skilled Painting Trades Worker, that the applicant had advertised the position and was unable to find a suitable local candidate, and that the tasks of the nominated position corresponded to the occupation of Painting Trades Worker.

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