Nexia Brisbane Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a decision concerning Nexia Brisbane Pty Ltd, the applicant, and its nomination for a position under the Direct Entry stream of the Migration Regulations 1994. The core dispute revolved around whether the applicant met all the requirements stipulated in regulation 5.19(4) for the approval of its nomination.

The Tribunal was required to determine if the nomination application was compliant, if the nominator was actively and lawfully operating a business in Australia, if the nominated position was not a labour-hire arrangement, and if the terms of employment met specific criteria regarding duration and conditions. Further issues included whether there was any adverse information known to Immigration, whether the nominator had a satisfactory record of compliance with workplace relations laws, and crucially, whether the tasks of the nominated position corresponded to an occupation specified by the Minister, and if there was a genuine need for the nominee.

The Tribunal found that the application was made in the approved form, included the necessary certification, and identified a need for a paid employee under the nominator's direct control, thus satisfying regulation 5.19(4)(a). Evidence presented, including tax returns and business records, indicated that the nominator was actively and lawfully operating its accountancy and consulting business, meeting regulation 5.19(4)(b). The Tribunal also determined that regulation 5.19(4)(c) did not apply as the nominated position was for a Senior Auditor, not for labour hire. The Tribunal was satisfied that the other requirements of regulation 5.19(4) were also met, including those relating to the term of employment, terms and conditions, absence of adverse information, satisfactory workplace relations compliance, and a genuine need for the position. Critically, the Tribunal accepted the applicant's explanation that the position was incorrectly nominated as an Accountant (General) rather than an External Auditor, and that the tasks aligned with the latter occupation.

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