Yippy Tri-Smith Pty Ltd in trust for Grant Smith Family Trust (Migration)

This matter concerned an application for approval of a nomination of a position under the Direct Entry nomination stream. The applicant, Yippy Tri-Smith Pty Ltd in trust for Grant Smith Family Trust, sought approval for a Retail Manager position. The dispute arose when the Department of Home Affairs initially refused to approve the nomination. The case was heard by P. Maishman of the Tribunal.

The Tribunal was required to determine whether the applicant met all the criteria for the approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, if there was any adverse information known to Immigration, and if the nominator had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal also had to assess the tasks of the position, the genuine need for the position, and whether the position was located in regional Australia, aligning with the requirements of regulation 5.19(4)(h)(ii).

The Tribunal's reasoning focused on a detailed examination of the evidence against each regulatory requirement. It found that the application was in the approved form, accompanied by the prescribed fee, and included the necessary certification regarding conduct. The Tribunal was satisfied that there was a genuine need for the nominator to employ the identified person in the Retail Manager role under their direct control, and that the nominator was actively and lawfully operating its business. Furthermore, the Tribunal found no adverse information known to Immigration and noted that the applicant had a satisfactory record of compliance with workplace relations laws, despite a pending legal action against other licensees. The Tribunal also confirmed that the position was located in regional Australia, as defined by the relevant legislative instrument, and that the tasks corresponded to the ANZSCO description for a Retail Manager.

Ultimately, the Tribunal concluded that the applicant had met all the requirements of regulation 5.19 for the approval of the nomination. Consequently, the Tribunal set aside the original decision under review and substituted a decision approving the nomination.