K Chapman & M. M Singh (Migration)

This matter concerned an application for approval of a nomination under the Direct Entry nomination stream, brought by K Chapman & M. M Singh. The applicant sought to nominate a position for a chef. The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the nomination application was compliant, whether the nominator was actively and lawfully operating a business in Australia, whether the nominated position was a labour-hire arrangement, whether there was any adverse information known to Immigration, whether the nominator had a satisfactory record of compliance with workplace relations laws, and whether the nominated position met the requirements regarding its tasks, genuine need, and training, or alternatively, if it was located in regional Australia and could not be filled by a local Australian citizen or permanent resident. The Tribunal also considered whether the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident performing equivalent work.

The Tribunal found that the application was made in the approved form, accompanied by the prescribed fee, and identified a genuine need for a paid employee under the nominator's direct control, thus satisfying regulation 5.19(4)(a). It was also satisfied that the nominator was actively and lawfully operating a business in Australia, meeting regulation 5.19(4)(b). The Tribunal determined that the position was not a labour-hire arrangement, and that there was no adverse information known to Immigration, nor an unsatisfactory record of compliance with workplace relations laws, satisfying regulations 5.19(4)(c), (f), and (g). Crucially, the Tribunal found that there was a genuine need for the nominator to employ the identified person as a paid employee to work in the position under their direct control, and that the position was located in regional Australia and could not be filled by a local Australian citizen or permanent resident, fulfilling the requirements of regulation 5.19(4)(h)(ii). The Tribunal was also satisfied that the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident for equivalent work.

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