Sparacino & Sons Pty Ltd (Migration)

This matter concerned an application by Sparacino & Sons Pty Ltd for approval of a nomination for an Agricultural Technician position under the Direct Entry stream. The Tribunal was required to determine whether the applicant met all the requirements stipulated in regulation 5.19 of the Migration Regulations 1994 for the approval of such a nomination.

The primary legal issues before the Tribunal were whether the application was compliant, whether there was a genuine need for the nominator to employ a paid employee in the nominated position under their direct control, whether the nominator had a satisfactory record of compliance with workplace relations laws, and whether the specific requirements for positions located in regional Australia under regulation 5.19(4)(h)(ii) were met. The Tribunal also considered the scope of regulation 5.19(4)(a)(ii) regarding the identification of a need for a paid employee, noting the potential ambiguity in its wording compared to other provisions.

The Tribunal found that the application was in the approved form and that no fee was payable as it related to the Regional Sponsored Migration Scheme. It determined that the issue of a genuine need for a paid employee, as potentially contemplated by regulation 5.19(4)(a)(ii), was more appropriately addressed under regulation 5.19(4)(h)(ii)(B), which specifically requires a genuine need for a paid employee in a regional position. The Tribunal was satisfied that the nominator had a satisfactory record of compliance with workplace relations laws and that there was no adverse information known to Immigration. Crucially, the Tribunal found that all the specific requirements of regulation 5.19(4)(h)(ii) for a position located in regional Australia were met, including the genuine need for the nominee, the inability to fill the position locally, and the correspondence of the tasks to a specified occupation.

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