The Trustee for JAMES D HARWOOD TRUST (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the nomination of a position under the Direct Entry stream. The applicant, the Trustee for James D Harwood Trust, sought approval for a nomination for a Records Manager position. The core of the dispute revolved around whether the nominator met all the 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 applicant satisfied several criteria, including that the nomination application was compliant, that the nominator was actively and lawfully operating a business in Australia, that there was no adverse information known to Immigration, and that the nominator had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal also had to assess whether the nominated position and the nominator's business were located in regional Australia, if there was a genuine need for the employee, and if the terms and conditions of employment were no less favourable than those offered to an Australian citizen or permanent resident for equivalent work.

In its reasoning, the Tribunal found that the application was made in the approved form, accompanied by the prescribed fee, and included the necessary written certification. Evidence presented, including an organisational chart and employment contract, satisfied the requirement for the position to be under the nominator's direct control. The Tribunal was satisfied that Harwood Homes, operating as James Harwood Homes, was actively and lawfully operating a construction business in Australia, supported by Australian Business Register and ASIC records, and recent Business Activity Statements. Furthermore, no adverse information was known to Immigration, and the Tribunal found no indication of non-compliance with workplace laws. The Tribunal also determined that the position of Records Manager in Mildura met the criteria for being located in regional Australia, that there was a genuine need for the role to improve efficiency and manage quotations, and that the proposed terms and conditions of employment were appropriate.

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