MARA: RSMS position advertised where nominee already employed by nominator

OMARA: "The Agent claimed that the nominated position was advertised on multiple platforms. The claimed advertising occurred after the employer and nominee attended the consultation with the Agent ... It is implausible that an employer would advertise a position for which they had already found a suitable candidate. As such, I am satisfied that [the complainant] was not genuinely recruited for the nominated position". With respect, can a nominator satisfy r 5.19(12)(c) without advertising the position?

To avoid doubt, the writer is not expressing an opinion on the conduct of the Agent or anyone else nor on the OMARA’s decision. This article is a mere extract of a decision and should not be interpreted in any other way. Further, this article covers only one aspect of the OMARA's decision.

Practitioners often advise nominators to advertise a position as part of an RSMS nomination application (Direct Entry stream) for the purposes of satisfying r 5.19(12)(c) of the Migration Regulations 1994 (Cth), which reads as follows:

the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

The OMARA found that there had been no application made to a regional certifying body (RCB), which is one of the requirements for an RSMS nomination.

In this matter, the fact that the nominee (under the Direct Entry) was already employed by the nominator suggested to the OMARA that the nominated position for an RSMS application was not genuine.

However, with respect, since the obligation is on clients (as opposed to decision makers) to establish that they satisfy the relevant legislative requirements, how could a nominator satisfy r 5.19(12)(c) without advertising the position?

A potential answer to that question is as follows.

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