J.N. BEVAN NOMINEES PTY LTD (Migration)

This matter concerned an application by J.N. Bevan Nominees Pty Ltd for approval of a nomination under the Direct Entry stream of the Regional Sponsored Migration Scheme. The applicant sought to nominate an individual for a position as a real estate agent. The core dispute revolved around whether the nomination satisfied the requirements of regulation 5.19(4) of the Migration Regulations 1994. The decision was made by Peter Emmerton, Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the nomination met all the criteria stipulated in regulation 5.19(4). Specifically, the Tribunal had to assess if there was a genuine need for the nominator to employ a paid employee in the nominated position, whether the position could be filled locally by an Australian citizen or permanent resident, and if the nominator's business was located in regional Australia. The Tribunal also considered compliance with various other requirements, including the form of the application, the terms and conditions of employment, and the absence of adverse information concerning the nominator.

The Tribunal's reasoning focused on assessing the evidence against the specific requirements of regulation 5.19(4)(h)(ii), which applies to nominations for positions located in regional Australia. It found that the nominating entity, a franchised real estate business in outer metropolitan Adelaide, demonstrated a genuine need for an additional sales person, particularly one with bi-lingual and cross-cultural skills to cater to the growing Chinese market segment. The Tribunal noted the business's revenue growth and expansion plans, supporting the need for increased staffing. Evidence of recruitment efforts, salary determination, and the nominee's qualifications and experience were considered. The Tribunal was satisfied that the position could not be filled locally and that the terms and conditions of employment were no less favourable than those offered to Australian workers. Furthermore, the Tribunal confirmed that a Regional Certifying Body had issued the necessary advice.

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