THE TRUSTEE FOR THE NGUYEN SA FAMILY TRUST (Migration)

This matter concerned an application by The Trustee for the Nguyen SA Family Trust for approval of a nominated position under the Direct Entry nomination stream. The applicant sought to nominate Mr Singh for the position of Nurseryperson. The core dispute revolved around whether the nominated position and the need for it were genuine, as required by the Migration Regulations 1994. The Administrative Appeals Tribunal was tasked with reviewing the delegate's decision to refuse the nomination.

The Tribunal was required to determine if the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether there was a genuine need for the paid position under the nominator's direct control, whether the position could not be filled by a locally resident Australian citizen or permanent resident, and whether the tasks of the position corresponded to an occupation specified in the relevant legislative instrument. The Tribunal also considered requirements relating to the location of the position in regional Australia, the applicability of the occupation to the proposed employee, and advice from a regional certifying body.

The Tribunal reasoned that the applicant's business, which involved growing vegetables in greenhouses using a high-tech hydroponic operation, had a genuine need for a Nurseryperson to supervise the growing of seedlings and vegetables. Evidence was accepted that the business had made efforts to fill the position with Australian citizens or permanent residents but had been unsuccessful, with most other applicants lacking the specific experience required for the business's operations. The Tribunal found that the nominee's duties, including checking irrigation, monitoring equipment, and plant hygiene, were essential to the business's operations. Furthermore, the Tribunal was satisfied that the position and business were located in regional Australia and that the other regulatory requirements, including those concerning adverse information and workplace relations compliance, were met.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.