The Trustee for Rai Family Trust (Migration)

The matter before the Tribunal concerned an application by The Trustee for Rai Family Trust for approval of a nomination under the Direct Entry stream for the occupation of Nurseryperson. The core dispute revolved around whether the nominator met the various requirements stipulated in Regulation 5.19(4) of the Migration Regulations 1994 for such an approval.

The Tribunal was required to determine if the applicant satisfied all the criteria under Regulation 5.19(4), including whether the application was in the approved form and accompanied by the prescribed fee, if there was a need for a paid employee under the nominator's direct control, and if the nominator was actively and lawfully operating a business in Australia. Further, the Tribunal had to assess if the employee would be employed for at least two years, if the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents, if there was no adverse information known to Immigration, and if the nominator had a satisfactory record of compliance with workplace relations laws. Finally, the Tribunal needed to consider the requirements relating to the tasks of the position, a genuine need for the position, and any applicable training requirements.

In its reasoning, the Tribunal found that the application met the formal requirements, including the necessary certification from a Regional Certifying Body. It accepted evidence that the nominator was actively and lawfully operating a business, which was expanding and in a good financial position to provide employment for at least two years. The Tribunal also considered the relevant award rates and was satisfied that the terms and conditions of employment for the nominated position were no less favourable than those for an Australian worker. No adverse information was presented, and the nominator was deemed to have a satisfactory record of compliance with workplace relations laws.

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