GYRO AUSTRALIA (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate to refuse an employer nomination approval for the position of Surveying or Spatial Science Technician. The applicant, GYRO AUSTRALIA (Migration), sought to nominate an employee under the Employer Nomination Scheme, visa subclass 186, Direct Entry stream. The delegate's refusal was based on the applicant's failure to provide sufficient documentary evidence to satisfy various subclauses of regulation 5.19(4) of the Migration Regulations 1994. The applicant subsequently applied to the Tribunal for a review of this decision.

The primary legal issue before the Tribunal was whether the applicant's nomination met the requirements of regulation 5.19(4) for approval under the Direct Entry nomination stream. Crucially, the Tribunal had to determine if the nomination could be considered under the Regional Sponsored Migration Scheme (RSMS) Direct Entry Stream, visa subclass 187, as the applicant indicated an error in the original application and the nominated position was located in regional Australia. The Tribunal also needed to assess whether there was a genuine need for the position, whether it could be filled by a local Australian, and if the applicant had provided adequate evidence of financial capacity and compliance with workplace relations laws.

The Tribunal reasoned that while the initial application was made under the non-regional subclass 186 stream, the evidence indicated the business and position were located in Kalgoorlie, a regional area. The applicant's representative clarified that the intention was to apply under the subclass 187 stream. The Tribunal accepted this clarification and proceeded to consider the nomination under the criteria for the subclass 187 stream, specifically regulation 5.19(4)(h)(ii). The Tribunal found that the position was located in regional Australia, there was a genuine need for the role due to business growth in the mining sector, and the applicant had provided sufficient financial information to demonstrate capacity. The Tribunal was satisfied that the applicant met the requirements of regulation 5.19(4) under this stream.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.