Mammone Steven Sebastian and Angela and Ross Sebastiano Partnership (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a nomination for a position under the Direct Entry stream. The parties involved were Steven Sebastian and Angela and Ross Sebastiano Partnership (the nominator) and the Department of Home Affairs (implied). The dispute centred on whether the nominator met the requirements for approving the nominated position, specifically regarding the genuine need for a paid employee in regional Australia and the terms and conditions of employment.

The Tribunal was required to determine if the application for approval of the nomination satisfied all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994. This included assessing whether the application was in the approved form, accompanied by the prescribed fee, and identified a genuine need for a paid employee under the nominator's direct control. Further, the Tribunal had to consider if the nominator was lawfully operating a business in Australia, if the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents, if there was any adverse information known to Immigration, and if the nominator had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal had to assess whether the nominated position was located in regional Australia and if there was a genuine need for the position that could not be filled by a local Australian citizen or permanent resident.

The Tribunal's reasoning focused on a detailed examination of the evidence provided by the applicant, particularly the substantial volume of supporting documents submitted after the initial application. It found that the application met the formal requirements of regulation 5.19(4)(a). Regarding the genuine need for the position, the Tribunal gave limited weight to an older approval from a Regional Certifying Body but was satisfied by the extensive material demonstrating the ongoing need for an accountant in the business, supported by the nominee's subsequent employment and contributions. The Tribunal also found that the terms and conditions of employment offered to the nominee were no less favourable than those provided to Australian workers in equivalent roles. Furthermore, no adverse information was known to Immigration, and the nominator had a satisfactory record of compliance with workplace relations laws. The Tribunal concluded that the position was located in regional Australia and that there was a genuine need for the position, which could not be filled by a local Australian citizen or permanent resident.

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