SWAN FABRICATORS (WA) PTY LTD (Migration)

This matter concerned an application by SWAN FABRICATORS (WA) PTY LTD for approval of an employer nomination for the position of Welder (First Class) under the Regional Sponsored Migration Direct Entry stream. The delegate had refused the application, finding that the applicant had not demonstrated sufficient financial capacity to provide the nominee with full-time employment for at least two years, as required by regulation 5.19(4)(d) of the Migration Regulations 1994. The applicant sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of regulation 5.19(4) for the approval of the employer nomination. This involved determining whether the nominated position was genuine, whether there was a genuine need for the position that could not be filled by a local resident, and whether the applicant had the financial capacity to employ the nominee for the required period. The Tribunal also considered whether the applicant had a satisfactory record of compliance with workplace relations laws and whether there was any adverse information known to the Department concerning the nominator.

The Tribunal reasoned that the applicant had provided sufficient evidence to satisfy the requirements of regulation 5.19(4). It accepted that the business operated in regional Australia and that there was a genuine need for a Welder (First Class) due to difficulties in attracting and retaining suitable local staff. The Tribunal was satisfied, based on the financial statements, tax returns, and payroll information provided, that the applicant had the financial capacity to employ the nominee for at least two years and that the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents. The Tribunal also found no adverse information and a satisfactory record of compliance with workplace relations laws.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the employer nomination.