The Trustee for Y & B Family Trust (Migration)

The Administrative Appeals Tribunal considered an application by The Trustee for Y & B Family Trust concerning the approval of a nominated position under the Direct Entry stream. The dispute arose when the Department of Home Affairs refused to approve the nominated position of Office Manager, which the applicant sought to fill. The applicant contended that the nominated position was necessary for the operation of its business.

The primary legal issue before the Tribunal was whether the applicant had demonstrated a genuine need for a paid employee to fill the Office Manager position under its direct control, as required by Regulation 5.19(4)(h)(ii)(B) of the Migration Regulations 1994. This regulation mandates that the nominated position must be located in regional Australia and that there must be a genuine need for the paid position under the nominator’s direct control, which cannot be filled by a locally resident Australian citizen or permanent resident. The Tribunal also considered whether the tasks of the position corresponded to an occupation specified in the relevant legislative instrument and if a regional certifying body had provided the necessary advice.

The Tribunal's reasoning focused on the evidence presented by the applicant, including financial statements, business plans, lease agreements for the Waterford West premises, and evidence of recruitment efforts. The Tribunal noted that the Department's delegate had found no identified need for the position. However, the Tribunal reviewed the evidence, including testimony from Mr. Yip regarding the business operations, which involved project marketing of off-the-plan house and land packages. The Tribunal considered the operational needs of the business, such as freeing up time for international expos and exhibitions, in assessing the genuine need for an Office Manager.

Ultimately, the Tribunal decided to set aside the decision under review and substitute a decision approving the nomination. The Tribunal found that the requirements of Regulation 5.19(4) were met, including the satisfactory compliance with workplace relations laws and the absence of adverse information known to Immigration. Crucially, the Tribunal was satisfied that there was a genuine need for the paid position of Office Manager at the Waterford West premises.