THE TRUSTEE FOR NGHI NGAN QUAN 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 NGHI NGAN QUAN TRUST, sought approval for a nominated position, and the Tribunal was tasked with determining whether all the requirements of regulation 5.19(4) of the Migration Regulations 1994 were met. The Tribunal had invited the applicant to provide further information, which was subsequently supplied, including ASIC records, financial statements, business activity statements, an organisational chart, position description, payroll records, and a statutory declaration.

The primary legal issue before the Tribunal was whether the applicant satisfied the various criteria stipulated in regulation 5.19(4) for the approval of a nomination under the Direct Entry stream. This involved assessing whether the application was in the approved form, if the nominator was actively and lawfully operating a business in Australia, if the nominated position was not a labour-hire arrangement, and if the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents. Additionally, the Tribunal had to consider whether there was any adverse information known to Immigration, whether the nominator had a satisfactory record of compliance with workplace relations laws, and crucially, whether the nominated position was located in regional Australia, there was a genuine need for the position, and it could not be filled by a local Australian resident.

The Tribunal found that the applicant had met all the relevant requirements of regulation 5.19(4). It was satisfied that the nomination application was compliant, that the nominator was actively and lawfully operating a business in Australia, and that the position was not a labour-hire arrangement. The Tribunal also determined that the terms and conditions of employment were appropriate and that no adverse information was known to Immigration. Furthermore, the Tribunal was satisfied that the nominator had a satisfactory record of compliance with workplace relations laws. Critically, the Tribunal found that the nominated position was located in regional Australia, there was a genuine need for the paid position under the nominator’s direct control, and that the position could not be filled by an Australian citizen or permanent resident living in the same local area.

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