TM ENTERPRISE PTY LTD (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning TM Enterprise Pty Ltd's application for approval of a nomination under the Direct Entry stream. The core dispute revolved around whether TM Enterprise Pty Ltd met the requirements of Regulation 5.19(4) of the Migration Regulations 1994 for the nomination of a 'Massage Therapist' position.

The Tribunal was required to determine if TM Enterprise Pty Ltd satisfied all the criteria stipulated in Regulation 5.19(4), including the application being in the approved form, the nominator actively and lawfully operating a business, the position not being labour-hire, the intended term of employment for the nominee, the terms and conditions of employment being no less favourable than for an Australian worker, the absence of adverse information known to Immigration, satisfactory compliance with workplace relations laws, and specific requirements relating to the tasks of the position and the genuine need for it, particularly in a regional context.

The Tribunal found that TM Enterprise Pty Ltd met all the relevant requirements of Regulation 5.19(4). Specifically, the application was compliant, the business was actively and lawfully operating, the position was not labour-hire, and the nominee was to be employed full-time for at least two years with no express exclusion of extension. Furthermore, the terms and conditions were deemed no less favourable than those for an Australian worker, there was no adverse information known to Immigration, and the company had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal determined that the ACT constituted 'regional Australia' for the purposes of the Regulations, satisfying the criteria for a position located in regional Australia with a genuine need that could not be filled locally.

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