Nulsen Haven Association (Inc) (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for approval of a nomination for a position under the Direct Entry nomination stream. The applicant, Nulsen Haven Association (Inc), sought approval for the nominated position of Residential Care Officer. The core dispute revolved around whether the nominated position met the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied all the criteria for nomination approval under regulation 5.19(4). This involved assessing whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, and if the position was not a labour-hire arrangement. Further considerations included the term of employment for the visa holder, the absence of adverse information known to Immigration, satisfactory compliance with workplace relations laws, and crucially, whether the tasks of the position genuinely reflected a need that could not be filled by local residents, aligning with the specified occupation and receiving advice from a regional certifying body.

The Tribunal found that the applicant met the requirements of regulation 5.19(4)(a) through (g), including the provision of the application in the approved form, the nominator's active business operations, the position not being labour-hire, the intended term of employment, terms and conditions being no less favourable than for an Australian worker, no adverse information being known, and satisfactory workplace relations compliance. Critically, regarding regulation 5.19(4)(h)(ii), the Tribunal was satisfied that the position was located in regional Australia, there was a genuine need for the paid position under the nominator's direct control, and that the position could not be filled by a local Australian citizen or permanent resident. The tasks of the position corresponded to the specified occupation, and a regional certifying body had provided the necessary advice.

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