JULIET HOLDINGS PTY LTD AS THE TRUSTEE FOR THE BEAU DISCRETIONARY TRUST (Migration)

This matter concerned an application by JULIET HOLDINGS PTY LTD AS THE TRUSTEE FOR THE BEAU DISCRETIONARY TRUST (the nominator) for approval of a nominated position for an Open Water Diving Instructor. The nominator, operating as Ambeau Sport & Recreation in Cairns, Queensland, provides recreational diving instruction primarily to tourists, many of whom are from overseas and have limited English proficiency. The core of the dispute revolved around whether there was a genuine need for the nominator to employ a bilingual diving instructor to cater to its international clientele.

The legal issue before the Tribunal was whether the nominator met the requirements for approval under the Direct Entry nomination stream, specifically Regulation 5.19(4) of the Migration Regulations 1994. This regulation mandates that an application must identify a genuine need for the nominator to employ a paid employee to work in the nominated position under their direct control. The Tribunal was required to assess the nature and scale of the nominator's business operations and the specific circumstances necessitating the employment of an individual with bilingual skills to effectively communicate with a significant portion of its customer base.

The Tribunal reasoned that the requirement for a "need" extended beyond a mere statement, necessitating factual evidence establishing the necessity of the role and the ability to work under the nominator's direct control. It found that the nominator, a long-standing business in Cairns, attracted a substantial number of overseas tourists who required instruction in their native language. This created a genuine business need for bilingual employees to engage with these clients, a need supported by the Queensland dive industry's code of practice which requires communication in a language easily understood by divers. The Tribunal was satisfied that the nominator met all other relevant criteria, including actively operating a lawful business, having no adverse information known to Immigration, and demonstrating satisfactory compliance with workplace relations laws. Consequently, the Tribunal set aside the original decision and substituted a decision approving the nomination.