Ramahyuck District Aboriginal Corporation (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the approval of a nominated position under the Direct Entry Nomination stream. The applicant, Ramahyuck District Aboriginal Corporation, sought approval for a nominated position of Childcare Worker. 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 approving the employer nomination. Specifically, 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, the Tribunal had to consider the term of employment for the visa holder, the fairness of the terms and conditions of employment compared to those offered to Australian citizens or permanent residents, the absence of adverse information known to Immigration, and satisfactory compliance with workplace relations laws. Crucially, the Tribunal also had to assess whether the tasks of the nominated position met the genuine need for the position and satisfied the relevant training benchmarks, particularly under regulation 5.19(4)(h).

The Tribunal found that the applicant met all the requirements of regulation 5.19(4). It was satisfied that the application was in the approved form, that the nominator was actively and lawfully operating a business in regional Australia, and that the position was not a labour-hire arrangement. The terms of employment were also deemed to be at least as favourable as those offered to local workers, and no adverse information was known to Immigration. Furthermore, the Tribunal concluded that the nominated position of Childcare Worker, located in regional Australia, met the criteria under regulation 5.19(4)(h)(ii), as there was a genuine need for the position, it could not be filled locally, and the tasks corresponded to an occupation at ANZSCO skill level 1, 2, or 3.

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