SONETA PTY LTD (Migration)

This matter concerned an application by Soneta Pty Ltd for approval of a nomination for the position of Construction Project Manager under the Direct Entry stream. The applicant, a family-owned plumbing services business established in 1984, lodged the application on 8 June 2017. The delegate refused the application on 3 August 2017, leading the applicant to seek review by the Tribunal. The Tribunal, presided over by Karen McNamara, considered various documents and submissions provided by the applicant, including financial statements, tax returns, and organisational charts, in determining whether the nomination met the requirements of regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether Soneta Pty Ltd had satisfied all the requirements for the approval of its nomination under the Direct Entry stream, as stipulated in regulation 5.19(4). Specifically, the Tribunal had to determine if the applicant had adequately identified a need for the nominated position, whether the business was actively and lawfully operating, and if the terms and conditions of employment offered were no less favourable than those provided to an Australian citizen or permanent resident for equivalent work. The Tribunal also considered the applicant's compliance with laws relating to workplace relations and the requirements concerning the duration of employment and the training of Australian workers.

The Tribunal reasoned that the wording of regulation 5.19(4)(a)(ii), which requires the application to "identify a need" for the position, suggested more than a mere statement or declaration of need. It interpreted "identify" as requiring the establishment or proof of the asserted need. The Tribunal found that the applicant had not provided sufficient evidence to demonstrate a genuine need for the Construction Project Manager position, nor had it shown attempts to find a suitable Australian citizen or permanent resident for the role, particularly given the position had been vacant for two years. Furthermore, the Tribunal noted the absence of a business plan and insufficient financial information to support the claimed need.

Consequently, the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19(4). As a result, the nomination for the position could not be approved, and the Tribunal affirmed the delegate's decision to refuse the nomination.