P & T Marciano Magic Pty Ltd (Migration)

The applicant, P & T Marciano Magic Pty Ltd, sought approval for an employer nomination for the position of Production Office Manager under the Direct Entry stream. The dispute concerned whether the applicant met the requirements of regulation 5.19 of the Migration Regulations 1994 for the nomination to be approved. The matter was heard by Vanessa Plain, a Member of the Tribunal.

The Tribunal was required to determine if the applicant satisfied all the criteria stipulated in regulation 5.19(4) of the Migration Regulations 1994. Specifically, this involved assessing whether the nominator was actively and lawfully operating a business, whether there was a genuine need to employ a paid employee for the nominated position, whether the nominated position was based in regional Australia, and whether there was no adverse information known to Immigration, satisfactory compliance with workplace relations laws, and that the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident.

The Tribunal's reasoning focused on each of the relevant sub-regulations. It found that the applicant, operating a large horticultural business in Mildura, Victoria, met the criteria for being actively and lawfully engaged in business. The Tribunal was satisfied that there was a genuine need for the nominated position, which was located in regional Australia, and that the business had made reasonable efforts to fill the role with local residents but had encountered difficulties in finding an applicant with the required specialised skill set. Furthermore, the Tribunal was satisfied that there was no adverse information known to the Department, that the applicant had a satisfactory record of compliance with workplace relations laws, and that the terms and conditions of employment were no less favourable than those offered to Australian workers.

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