McTatts Property Pty Ltd (Migration)

The Administrative Appeals Tribunal, with Member Peter Emmerton presiding, considered a decision to refuse the approval of a nomination under the Direct Entry nomination stream. The applicant sought to have a position nominated, and the Tribunal was tasked with determining whether the nomination met the requirements of regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominated position satisfied the criteria outlined in regulation 5.19(4)(h). Specifically, the Tribunal had to ascertain if the applicant met the requirements for either the general Direct Entry stream or the regional Australia stream, which involved considerations such as the genuineness of the need for the position, the correspondence of the tasks to an occupation specified by the Minister, and, crucially for the regional stream, the requirement for advice from a Regional Certifying Body.

The Tribunal reasoned that the applicant had applied for the nomination as a Regional Sponsored Migration Scheme position, thus requiring them to meet the specific criteria under regulation 5.19(4)(h)(ii). This subregulation mandates that a Regional Certifying Body, located in the same State or Territory as the nominated position, must have advised the Minister on specific matters, including the terms and conditions of employment being no less favourable than those for local workers, the genuine need for the nominated person, and the inability to fill the position with a local Australian citizen or permanent resident. The Tribunal found that the applicant had not provided evidence of such advice from a Regional Certifying Body. 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.