Kintaro Enterprises Brickworks Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a decision to refuse the nomination of a Retail Manager position by Kintaro Enterprises Brickworks Pty Ltd. The applicant sought approval of the nomination under the Direct Entry nomination stream, as set out in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant met all the requirements for the approval of the nomination under regulation 5.19(4). Specifically, the Tribunal examined whether the application identified a genuine need for a paid employee under the nominator's direct control, whether the nominator was actively and lawfully operating a business, and whether the nominated position was not related to labour hire. Further, the Tribunal considered requirements concerning the term of employment, the terms and conditions of employment being no less favourable than those offered to Australian citizens or permanent residents, the absence of adverse information known to Immigration, satisfactory compliance with workplace relations laws, and the specific criteria relating to the tasks of the position, the genuine need for the position, and training requirements.

The Tribunal found that while some requirements of regulation 5.19(4) were met, including the application being in the approved form, the nominator actively operating a business, and the position not being labour-hire, several other criteria were not satisfied. The Tribunal noted insufficient evidence regarding adverse information known to Immigration and satisfactory compliance with workplace relations laws. Crucially, the Tribunal determined there was insufficient evidence to establish that the tasks of the nominated position corresponded to an occupation specified by the Minister, that the occupation was applicable to the proposed employee, or that the nominator met the relevant training requirements or had an auditable plan for meeting them. Consequently, the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19(4).

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination, as the applicant had not demonstrated that all the necessary criteria for approval under the Direct Entry nomination stream had been met.