The Trustee for Raz Family Trust (Migration)

This matter concerned an application by The Trustee for Raz Family Trust for approval of a nomination under the Direct Entry stream. The primary dispute revolved around whether the applicant met the requirements of Regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the location of the nominated position and the advice from a Regional Certifying Body (RCB). The case was heard by Michael Cooke.

The legal issues before the Tribunal were whether the applicant had satisfied all the requirements of Regulation 5.19(4) for the approval of the nomination. This included assessing compliance with provisions relating to the application form and fee, the nominator's active and lawful operation of a business, the nature of the nominated position (not being labour hire), the terms of employment for the nominee, and the provision of no less favourable terms and conditions of employment compared to Australian workers. Crucially, the Tribunal had to determine if the nominated position was located in "regional Australia" as defined by the relevant legislative instrument at the time, and whether the temporary suspension of RCB advice in Western Australia and the subsequent exclusion of the Perth metropolitan area from regional recognition impacted the application.

The Tribunal reasoned that while the legislative instrument in force at the time of the nomination application specified the whole of Western Australia as "regional Australia," the applicant could not obtain RCB advice due to a temporary suspension. Subsequently, when RCB advice was reinstated, the Perth metropolitan area was excluded from regional recognition. However, the Tribunal found that Regulation 5.19(4)(h) provided alternative pathways for meeting the requirements, and that the applicant had satisfied the conditions relating to the tasks of the position, the genuine need for it, and the training requirements, irrespective of the RCB advice issue. The Tribunal also found that the applicant met the other requirements of Regulation 5.19(4), including having no adverse information known to Immigration, demonstrating satisfactory compliance with workplace relations laws, and meeting the financial capacity to employ the nominee for at least two years.

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