Victorian Colours Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning Victorian Colours Pty Ltd's nomination for a position under the Direct Entry stream. The core dispute revolved around whether the nominator, Victorian Colours Pty Ltd, met all the regulatory requirements for the approval of its nomination. The Tribunal was tasked with determining if the applicant had satisfied the criteria outlined in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to assess several specific legal issues. These included whether the nomination application was compliant, if the nominator was actively and lawfully operating a business in Australia, and if the nominated position was not a labour-hire arrangement. Furthermore, the Tribunal had to consider whether the employee would receive terms and conditions of employment no less favourable than those provided to an Australian citizen or permanent resident, whether there was any adverse information known to Immigration, and if the nominator had a satisfactory record of compliance with workplace relations laws. Finally, the Tribunal had to determine if there was a genuine need for the nominated position and if it met the relevant occupation and training requirements, particularly given the business's location in regional Australia.

In its reasoning, the Tribunal systematically addressed each subregulation of 5.19(4). It found that the application was in the approved form and identified a genuine need for a paid employee under the nominator's direct control. Evidence, including tax returns and BAS statements, demonstrated that Victorian Colours Pty Ltd was actively and lawfully operating a painting services business in Shepparton, Victoria, despite COVID-19 impacts. The Tribunal was satisfied that the nominated position was not a labour-hire arrangement and that the employee would be employed on terms no less favourable than an Australian worker. Crucially, the Tribunal noted that Shepparton is designated as regional Australia, triggering the alternative requirements under reg 5.19(4)(h)(ii), which included a genuine need for the position that could not be filled locally. The Tribunal found no adverse information and no indication of non-compliance with workplace relations laws.

Based on its findings that all relevant requirements of regulation 5.19(4) were met, the Tribunal set aside the original decision under review. It substituted a new decision approving the nomination.