NULSEN HAVEN ASSOCIATION (INCORPORATED) (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a nomination under the Direct Entry stream. The applicant, Nulsen Haven Association (Incorporated), sought approval for a nominated position. The core dispute revolved around whether the nominated position and the nominator met the specific requirements of Regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied all the criteria for approval of the nomination. This involved 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 ascertain if the nominator was actively and lawfully operating a business in Australia, if the nominated position was not for labour hire, and if the terms of employment met the specified duration and conditions. Crucially, the Tribunal had to consider whether the tasks of the position corresponded to an occupation specified by the Minister, and if the position was located in regional Australia, whether there was a genuine need that could not be filled by a local Australian resident.

The Tribunal found that the applicant met the requirements of Regulation 5.19(4)(a) by submitting a compliant application that identified a need for a paid employee. It was also satisfied that the nominator was actively and lawfully operating a registered charity in Australia, fulfilling Regulation 5.19(4)(b). Regulation 5.19(4)(c) was deemed not applicable as the nominator's business did not involve labour hire. The Tribunal confirmed that the terms of employment met the requirements of Regulation 5.19(4)(d) and (e), and that there was no adverse information known to Immigration, satisfying Regulation 5.19(4)(f). Furthermore, the nominator had a satisfactory record of compliance with workplace relations laws, meeting Regulation 5.19(4)(g). Regarding Regulation 5.19(4)(h), the Tribunal was satisfied that the position and business were located in regional Australia (Cannington, Western Australia) and that there was a genuine need for the paid position which could not be filled by a local Australian citizen or permanent resident, aligning with the criteria for regional nominations.

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