Silkwood Wines Pty Ltd ATF Silkwood Trust (Migration)

The matter before the Tribunal concerned an application by Silkwood Wines Pty Ltd ATF Silkwood Trust for approval of a nomination for a Sales and Marketing Manager position under the Direct Entry nomination stream. The dispute arose from the Department's initial decision to refuse the nomination. The Tribunal was tasked with reviewing this decision based on the documentary and oral evidence presented.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination as stipulated in regulation 5.19(4) of the Migration Regulations 1994. This involved assessing various criteria, including the compliance of the application, the nominator's active and lawful operation of a business, whether the position was a labour hire arrangement, the proposed term of employment, the fairness of the terms and conditions of employment compared to local workers, the absence of adverse information concerning the nominator, satisfactory compliance with workplace relations laws, and the specific requirements relating to the tasks of the position, a genuine need for the nominee, and regional location.

The Tribunal found that the applicant satisfied all the relevant requirements of regulation 5.19(4). It was satisfied that the application was compliant, the nominator was actively operating a business, and the position was not a labour hire arrangement. The proposed employment for at least two years with no express exclusion of extension met the criteria, as did the terms and conditions being no less favourable than those for an Australian worker. Crucially, the Tribunal determined that the position of Sales and Marketing Manager, located in regional Western Australia, met the requirements of regulation 5.19(4)(h)(ii), including a genuine need for the nominee with specific expertise in the Chinese wine market, the inability to fill the position locally, and correspondence with the specified occupation. The Tribunal also noted that a regional certifying body had provided the necessary advice.

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