JCCH PTY LTD ATF JCCH TRUST (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a nomination application made by JCCH Pty Ltd ATF JCCH Trust, operating physiotherapy and rehabilitation clinics. The dispute centred on whether the applicant met the requirements for approval of a nominated position under the Direct Entry stream of the Regional Sponsored Migration Scheme visa subclass 187. The nominated position was for a physiotherapist, with a proposed annual salary of $70,000, in favour of Mr Yasushi Nomura.

The Tribunal was required to determine if the applicant satisfied all the criteria stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nominated position. This involved assessing compliance with requirements relating to the application form and fee, the identification of a genuine need for a paid employee under the nominator's direct control, the nominator's active and lawful operation of a business, and the terms and conditions of employment. Additionally, the Tribunal had to consider whether there was any adverse information known to Immigration about the nominator or associated persons, and whether the nominator had a satisfactory record of compliance with workplace relations laws. Finally, the Tribunal needed to ascertain if the nominated position met the criteria concerning the tasks to be performed, the genuine need for the position, and any applicable training requirements, particularly in the context of regional Australia.

The Tribunal found that the application was made in the approved form and accompanied by the prescribed fee, and that the nominator had certified compliance with section 245AR(1) of the Migration Act 1958. It was satisfied that there was a genuine need for a paid employee to work under the nominator's direct control. The Tribunal also confirmed that the nominator was actively and lawfully operating a business, that the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents for equivalent work, and that there was no adverse information known to Immigration. Furthermore, the nominator had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal determined that the business was located in regional Australia, satisfying the requirements of regulation 5.19(4)(h)(ii).

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