Settlers Pty Ltd (Migration)

The Administrative Appeals Tribunal considered an application by Settlers Pty Ltd for approval of a nomination for a position under the Direct Entry stream of the Migration Regulations 1994. The dispute centred on whether the nominated position met the requirements of regulation 5.19(4), specifically concerning its location and the genuine need for the role.

The primary legal issue before the Tribunal was to determine if Settlers Pty Ltd had satisfied all the criteria stipulated in regulation 5.19(4)(h)(ii) for a Direct Entry nomination. This regulation outlines alternative requirements, and the Tribunal was tasked with assessing whether the nominated position, intended to be located in Perth, Western Australia, qualified as being in "regional Australia" as defined by the relevant legislative instrument in force at the time of the application.

The Tribunal's reasoning focused on the interpretation of "regional Australia" within the context of the migration scheme. It noted that the legislative instrument applicable at the time of the nomination had been revoked and replaced by a new instrument which explicitly excluded the Perth metropolitan area from the definition of regional Australia. The Tribunal found that this interpretation was consistent with the intention of the visa scheme, which aims to encourage migration to areas outside major metropolitan centres. Consequently, as the nominated position was not located in regional Australia according to the operative legislative instrument, the requirements of regulation 5.19(4)(h)(ii)(A) were not met.

The Tribunal affirmed the decision under review to refuse the nomination. It concluded that Settlers Pty Ltd had not satisfied the criteria for the Direct Entry stream, as the nominated position was not located in regional Australia as defined by the relevant legislative instrument. Therefore, the nomination could not be approved.