Vivekta Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a nomination for a Technical Sales Representative (nec) position under the Direct Entry nomination stream. The applicant, Vivekta Pty Ltd, operating as Solar Masters Group, sought approval for its nomination of an employee to fill this role at its Cairns office. The central dispute revolved around whether Vivekta Pty Ltd met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nomination.

The Tribunal was required to determine if Vivekta Pty Ltd satisfied the various criteria under regulation 5.19(4), including whether there was a genuine need for a paid employee in the nominated position, if the nominator was actively and lawfully operating a business in Australia, and if the proposed employment offered terms and conditions no less favourable than those provided to Australian citizens or permanent residents. Furthermore, the Tribunal had to assess whether there was any adverse information known to the Department of Immigration regarding the nominator or associated persons, and if the nominator had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal also considered the specific requirements for positions located in regional Australia, as outlined in regulation 5.19(4)(h)(ii).

In its reasoning, the Tribunal considered extensive documentary evidence provided by Vivekta Pty Ltd, including financial statements, tax returns, business activity statements, and employment contracts, as well as oral evidence from a hearing. The Tribunal found that the nominated position was located in Cairns, satisfying the requirement for the position and business to be situated in regional Australia. It was also satisfied that there was a genuine need for the nominee to be employed in the role, that the nominator was actively and lawfully operating its business, and that the nominee would be employed full-time with no less favourable terms and conditions. The Tribunal also concluded that there was no adverse information known to Immigration and that Vivekta Pty Ltd had a satisfactory record of compliance with workplace relations laws.

Consequently, the Tribunal determined that Vivekta Pty Ltd met all the necessary requirements under regulation 5.19(4) for the approval of the nomination. The Tribunal set aside the original decision and substituted a decision approving the nomination.