The Trustee For Subway Bridge Street Unit Trust (Migration)

The Administrative Appeals Tribunal (AAT) considered a review of a decision concerning a nomination for a visa under the Direct Entry nomination stream. The nominator was The Trustee For Subway Bridge Street Unit Trust, and the nominated position was Retail Manager. The dispute centred on whether the nominated position and the nominator met the requirements of the relevant migration regulations for the approval of the nomination.

The primary legal issue before the Tribunal was to determine if the nominator had satisfied all the requirements of regulation 5.19(4) of the Migration Regulations 1994. This included assessing whether the application was in the approved form, if there was a genuine need for a paid employee under the nominator's direct control, whether the nominated position was based in regional Australia, and if the tasks of the position corresponded to an occupation specified in the relevant legislative instrument. The Tribunal also had to consider whether the nominator had a satisfactory record of compliance with workplace relations laws and if there was any adverse information known to the Department of Home Affairs.

The Tribunal reasoned that the nominator had met the requirements of regulation 5.19(4) by demonstrating a valid application, a genuine need for the position, and that the position was located in regional Australia. It found that a previous unsuccessful unfair dismissal claim from 12 years prior did not constitute an unsatisfactory record of compliance with workplace relations laws. Furthermore, the Tribunal was satisfied that no adverse information was known to the Department regarding the nominator. The Tribunal also considered the provisions of section 359AA of the Migration Act 1958 regarding the procedure for informing the applicant of potential reasons for affirming a decision and providing an opportunity to respond.

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