SP&A GROUP PTY LTD (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a nomination application made by SP&A Group Pty Ltd for an Office Manager position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The nominator, a retail business selling skincare products in regional New South Wales, was operated by directors Sapir Paz Sharabi, the nominee, and her husband Avishay Sharabi. The Regional Development Australia Central Coast, acting as the certifying body, had advised against approving the nomination, primarily on the grounds that there was no demonstrable skills shortage for the nominated occupation in the local area.

The Tribunal was required to determine whether SP&A Group Pty Ltd met the requirements for the approval of the nomination, specifically focusing on the criteria for the Direct Entry stream under regulation 5.19 of the Migration Regulations 1994. Key issues included whether there was a genuine need for the nominated position, whether the business was actively and lawfully operating, and whether the position could not be filled by a local Australian worker. The Tribunal also considered the advice from the Regional Certifying Body regarding the lack of a skills shortage.

In its reasoning, the Tribunal noted that while there might not be a formal skills shortage for the occupation, the business had made genuine efforts to recruit locally, including advertising, and had been unable to find suitable candidates. The Tribunal found that the position was not created solely to facilitate a migration outcome, but rather arose from the growth of the business and the increasing complexity of its operations, which necessitated the employment of an Office Manager. The Tribunal concluded that the nominator was actively and lawfully operating a business and that there was a genuine need for the nominated position, which the business had capacity to fill for the required period.

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