YCW CHILDCARE PTY LTD AS TRUSTEE FOR YCW CHILDCARE TRUST (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning YCW Childcare Pty Ltd as Trustee for YCW Childcare Trust (the nominator) in relation to a nomination under the Direct Entry stream. The dispute centred on whether the nominator met the various requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nominated position.

The Tribunal was required to determine if the nominator satisfied all the criteria for approval under the Direct Entry nomination stream. This included assessing whether the application was made in the approved form and accompanied by the correct fee, whether the nominator was actively and lawfully operating a business in Australia, and if the nominated position was not for labour hire. Furthermore, the Tribunal had to consider the terms and conditions of employment, specifically whether the employee would be engaged full-time for at least two years with no express exclusion of an extension, and whether these terms were no less favourable than those offered to an Australian citizen or permanent resident for equivalent work. The Tribunal also had to consider the specific requirements under regulation 5.19(4)(h), which pertains to the genuine need for the nominator to employ a paid employee and the location of the position, particularly if it was in regional Australia.

The Tribunal found that the nominator met the requirements of regulation 5.19(4)(a) by submitting the application in the approved form, paying the prescribed fee, and providing the necessary certification. It was also satisfied that the nominator was actively and lawfully operating a business in Australia, directly managing it, and that the position was not a labour hire arrangement, thus satisfying regulations 5.19(4)(b) and (c). The Tribunal confirmed that the terms of employment met the criteria in regulation 5.19(4)(d) and (e), ensuring the nominee would be employed full-time for at least two years with no less favourable terms than an Australian worker. Crucially, the Tribunal found that the position was located in regional Australia and that there was a genuine need for the nominator to employ the identified person, satisfying the conditions under regulation 5.19(4)(h)(ii).

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