Trustee for Ambalal Patel Family Trust (Migration)

The case concerned an application by the Trustee for Ambalal Patel Family Trust for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The dispute centred on whether the nominated position of Marketing Specialist in the Fraser Coast region of Queensland met the requirements of the Migration Regulations 1994. The decision was made by K. Chapman, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant had satisfied all the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nominated position. This involved assessing whether the application was compliant, the nominator was actively operating a business, the position was not labour-hire, the terms of employment were appropriate, there was no adverse information known to Immigration, the nominator had a satisfactory record of compliance with workplace relations laws, and crucially, whether there was a genuine need for the nominated position in regional Australia and if it could not be filled by a local resident.

The Tribunal's reasoning focused on each subregulation of 5.19(4). It found that the application was in the approved form, no fee was payable as the position was in regional Australia, and the necessary certifications were provided, thus satisfying regulation 5.19(4)(a). The Tribunal was satisfied that the nominator was actively and lawfully operating a business in the Fraser Coast region, meeting regulation 5.19(4)(b), and that regulation 5.19(4)(c) did not apply as the business was not involved in labour hire. The Tribunal also found that the terms of employment met the requirements of regulation 5.19(4)(d) and (e), and that there was no adverse information or non-compliance with workplace relations laws, satisfying regulations 5.19(4)(f) and (g). Critically, in relation to regulation 5.19(4)(h)(ii), the Tribunal accepted that there was a genuine need for the Marketing Specialist role due to the difficulty in finding suitably qualified local talent, and that the nominee's skills and experience had demonstrably increased sales, supporting the genuine need for their employment under the nominator's direct control.

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