STP Melville Financial Services Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant, STP Melville Financial Services Pty Ltd, sought approval for a nominated position as an Accountant (General). The core dispute revolved around whether the applicant met the various requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nomination.

The Tribunal was required to determine if the application met the criteria outlined in regulation 5.19(4), specifically addressing whether the application was in the approved form, identified a genuine need for a paid employee under the nominator's direct control, and if the business was actively and lawfully operating. Further, the Tribunal had to consider whether the terms and conditions of employment were no less favourable than those offered to local workers, if there was no adverse information known to Immigration, and if the nominator had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal had to assess whether the requirements of regulation 5.19(4)(h) were met, particularly concerning the genuine need for the position and any associated training or regional certification requirements.

The Tribunal found that the applicant had satisfied the formal requirements of the application, including its form and fee, and had provided the necessary certification regarding conduct. It accepted, based on the evidence of the company's structure, operations, and Mr. Malik's evidence regarding his involvement and the need for accounting services, that there was a genuine need for a paid employee to work under the nominator's direct control. The Tribunal also found no adverse information known to Immigration and no evidence suggesting a lack of satisfactory compliance with workplace relations laws. The Tribunal concluded that the applicant met the requirements of regulation 5.19 for the approval of the nomination.

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