The Trustee for MCHOME Trust (Migration)

The Trustee for MCHOME Trust (the applicant) sought review of a decision to refuse approval of its nomination of a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The dispute concerned whether the applicant met the requirements for approval of the nomination, specifically regarding the genuine need for the nominated position and whether it could be filled by a local citizen or permanent resident. The matter was heard by Terrence Baxter.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the approval of a nomination under the Direct Entry stream. This involved assessing whether the application was in the approved form, whether there was a genuine need for the nominator to employ the identified person, whether there was no adverse information known to the Department, and whether the applicant had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal also had to consider the requirements under regulation 5.19(4)(h), which, for positions in regional Australia, necessitates a genuine need for the nominee's employment, the inability to fill the position with a local, and correspondence between the position's tasks and a specified occupation.

The Tribunal reasoned that while regulation 5.19(4)(a)(ii) could be interpreted narrowly, the more substantive requirements regarding a genuine need for the position and the inability to fill it with a local resident were more appropriately assessed under regulation 5.19(4)(h)(ii)(B). After considering extensive documentary evidence, including financial statements, employment contracts, and correspondence from a Regional Certifying Body, the Tribunal was satisfied that the applicant had demonstrated a genuine need for the nominated post office manager position and that the position could not be filled by a citizen or permanent resident. The Tribunal also found that the applicant met the requirements concerning the form of the application, the absence of adverse information, and satisfactory compliance with workplace relations laws.

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