MSR Freight Services Pty Ltd (Migration)

This matter concerned an application for approval of a nomination for a position under the Direct Entry stream of the Regional Sponsored Migration Program. The applicant, MSR Freight Services Pty Ltd, sought approval for the nomination of Mr Inderjeet Miglani for the position of Motel Manager at the Hi Craft Motel in Ballina, New South Wales. The core dispute revolved around whether the applicant met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the nomination to be approved.

The Tribunal was required to determine if the applicant satisfied the various criteria outlined in regulation 5.19(4), including whether the application was in the approved form, identified a genuine need for the nominated employee, and if the nominator was actively and lawfully operating a business. Crucially, the Tribunal had to assess whether the position could not be filled by a locally resident Australian citizen or permanent resident, and whether a regional certifying body had provided the necessary advice. The Tribunal also considered the impact of the COVID-19 pandemic on the labour market and the subsequent approval by the Regional Certifying Body.

The Tribunal found that the applicant met the requirements of regulation 5.19(4)(a), including the need for the nominator to employ the identified person under their direct control, citing the owner's other business interests and his wife's ill health as reasons for reliance on the nominee. It was also satisfied that there was no adverse information known to Immigration regarding the nominator and that the nominator had a satisfactory record of compliance with workplace relations laws. Furthermore, the Tribunal determined that the position was located in regional Australia and that there was a genuine need for the nominee's employment. The Tribunal concluded that the position could not be filled by a local resident and that the necessary advice had been received from the regional certifying body.

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