Wilson Brewing Company (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning Wilson Brewing Company's application for approval of a direct entry nomination for a Safety Inspector position. The dispute centred on whether the nominating company and the nominated employee met the requirements under regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nomination.

The Tribunal was required to determine if the application complied with the prescribed form and fee requirements, 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 assess whether the nominee would be employed full-time for at least two years under terms that did not expressly exclude an extension, and crucially, whether there was a genuine need for the position and a difficulty in recruiting a suitably skilled and experienced Australian worker.

The Tribunal found that the application met the formal requirements, including being in the approved form and accompanied by the prescribed fee, and that the nominator was indeed actively and lawfully operating its micro-brewery business. It was also satisfied that the arrangement was not a labour hire situation and that the nominee had been offered full-time employment for at least two years with no express exclusion of an extension. Critically, the Tribunal considered the financial documentation, which showed substantial income despite initial losses during business establishment and expansion, supplemented by crowdfunding, and the oral evidence from the company director and the nominee. This evidence established a genuine need for the Safety Inspector role and demonstrated that the company had experienced difficulty in recruiting a suitably skilled and experienced Australian employee, especially given the nominee's existing six years of employment with the company.

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