Onsite Medical Care Pty Ltd, ATF OM Care Trust (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the nomination of a position by Onsite Medical Care Pty Ltd, ATF OM Care Trust. The applicant sought approval for a Marketing Specialist position under the Direct Entry stream of the Subclass 187 Regional Sponsored Migration Scheme visa. The core of the dispute revolved around whether the nominated position met the requirements stipulated in regulation 5.19 of the Migration Regulations 1994.

The Tribunal was required to determine if the application for nomination approval satisfied the general requirements under reg 5.19(4) and the specific requirements for the Direct Entry stream under reg 5.19(9). This involved assessing whether the application was made in the approved form, whether the nominator had a satisfactory record of compliance with employment laws, and whether there were any mandatory licensing or registration requirements for the nominated occupation. Crucially, for the Direct Entry stream, the Tribunal had to consider if the nominator was actively and lawfully operating a business, if there was a genuine need for the identified person to be employed in the position, and if the position could not be filled locally by an Australian citizen or permanent resident.

The Tribunal found that the application met all the general requirements of reg 5.19(4), including being correctly lodged, identifying the position and applicant, and confirming no mandatory licensing or registration was required for a Marketing Specialist in Western Australia. It also found that the nominator had a satisfactory compliance record with employment laws and no outstanding training contribution debts. Regarding the Direct Entry stream requirements, the Tribunal was satisfied that the nominator was actively and lawfully operating a business. Furthermore, it concluded that there was a genuine need for the identified person to be employed in the position, and that the position could not be filled locally, as required by reg 5.19(9)(c) and (d), and (12)(c) respectively.

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