The Trustee for Subleaver Trust (Migration)

The Administrative Appeals Tribunal considered a dispute concerning a nomination for a visa under the Direct Entry stream. The applicant, The Trustee for Subleaver Trust, sought approval for a nomination for a Retail Manager position. The core of the dispute revolved around whether the nominating entity met the various requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of such a nomination.

The Tribunal was required to determine if the nominating entity had demonstrated a genuine need for a paid employee in the nominated position, that the position could not be filled locally by an Australian citizen or permanent resident, and that the duties of the position aligned with the ANZSCO classification for a Retail Manager. Furthermore, the Tribunal had to assess whether the nominator possessed the financial capacity to employ the nominee for the minimum two-year period, whether the employment contract allowed for potential extension beyond this period, and if the terms and conditions of employment were no less favourable than those offered to an Australian worker in a similar role. The Tribunal also considered requirements relating to the nominator's compliance with workplace relations laws and the absence of adverse information known to Immigration.

In its reasoning, the Tribunal found that the nominating entity, a retail operation in Perth, Western Australia, had provided sufficient evidence of its recruitment process, which included advertising and interviewing multiple candidates. The Tribunal accepted that the visa applicant's qualifications and responsibilities aligned with the Retail Manager (ANZSCO 142111) occupation. It was satisfied that the salary offered, while at the lower end of the market, was appropriate for the nominee's experience and met the equivalence requirements under regulation 5.19(4)(e). The Tribunal also found that the employment contract did not expressly preclude an extension of employment beyond the initial two years, satisfying regulation 5.19(4)(d)(ii). Crucially, the Tribunal was satisfied that there was a genuine need for the position, that it could not be filled locally, and that the nominator had a satisfactory record of compliance with relevant laws.

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