YHI Power Pty Ltd (Migration)

This matter concerned an application by YHI Power Pty Ltd for approval of a nominated position under the Direct Entry stream. The core dispute revolved around whether the nominator had demonstrated a genuine need for the position, particularly in light of the nominator's stated intention to increase market share and the fact that other employees were covering the proposed nominee's duties. The decision was made by Member Danielle Galvin of the Tribunal.

The Tribunal was required to determine whether YHI Power Pty Ltd met all the requirements for the approval of the nominated position as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, if the position was not a labour-hire arrangement, if there was no adverse information known to Immigration, if the nominator had a satisfactory record of compliance with workplace relations laws, and crucially, if there was a genuine need for the position and if training requirements had been met.

The Tribunal found that the application met the requirements of regulation 5.19(4). It accepted that there was a need for the position, noting that other employees were being distracted from their roles to perform marketing duties, which was not ideal for a business seeking to grow its market share. The Tribunal also accepted that the nominator was actively and lawfully operating a business, was not engaged in labour hire, had no adverse information known to Immigration, and had a satisfactory record of compliance with workplace relations laws. Furthermore, the Tribunal was satisfied that the proposed tasks corresponded to the relevant ANZSCO description and that the business had met the training benchmark requirements.

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