The Trustee for DM Harvesting Trust (Migration)

This matter concerned an application for approval of a nomination under the Direct Entry nomination stream, brought by The Trustee for DM Harvesting Trust. The dispute centred on whether the nominator met the various requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of a nominated position. The decision was made by Member Angela Julian-Armitage of the Tribunal.

The Tribunal was required to determine if the nominator satisfied all the conditions precedent to the approval of the nomination. These included whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, and if the nominated position was not a labour-hire arrangement. Further issues included the term of employment for the visa holder, whether the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents, and the absence of adverse information known to Immigration. Finally, the Tribunal had to assess the nominator's compliance with workplace relations laws and whether the tasks of the position corresponded to a specified occupation, alongside a genuine need for the employee and applicable training requirements, or alternatively, if the position was located in regional Australia with a genuine need and inability to be filled locally.

The Tribunal's reasoning involved a detailed examination of each subregulation of regulation 5.19(4). It found that the application was in the approved form, accompanied by the prescribed fee, and included the necessary certification. The nominator was found to be actively and lawfully operating its business directly in Australia, and regulation 5.19(4)(c) did not apply as the business was not involved in labour hire. The employment contract provided for a term exceeding two years without express exclusion of extension, satisfying regulation 5.19(4)(d). The Tribunal was satisfied that the terms and conditions of employment were no less favourable than those for an Australian worker, and no adverse information was known to Immigration, nor was there any indication of non-compliance with workplace relations laws. Crucially, the Tribunal found that the position was located in regional Australia, there was a genuine need for the nominee, and the tasks corresponded to a specified occupation, thus meeting the alternative requirements of regulation 5.19(4)(h)(ii).

Consequently, the Tribunal was satisfied that the applicant met all the requirements of regulation 5.19 for the approval of the nomination. The Tribunal set aside the decision under review and substituted a decision approving the nomination.