1511117 (Migration)

The Administrative Appeals Tribunal considered an application for approval of a nominated position under the Direct Entry nomination stream, as set out in regulation 5.19(4) of the Migration Regulations 1994. The applicant sought to nominate a Retail Manager position at the Marmion Post and Newsagency, which was located in regional Australia. The nominated position had previously been filled by the business owners, and the visa applicant had been employed on a casual basis for 20 to 30 hours per week since before the current owners acquired the business.

The primary legal issue before the Tribunal was whether the nominated position met all the requirements of regulation 5.19(4) for approval. Specifically, the Tribunal had to determine if there was a genuine need for the paid position under the nominator's direct control, if the position could not be filled by a locally resident Australian citizen or permanent resident, and if the tasks of the position corresponded to an occupation at ANZSCO skill level 1, 2, or 3. The Tribunal also considered the applicant's submission that they could not employ the visa applicant in the nominated position until the visa was granted, due to the perceived onerousness of notifying Australia Post of a change in manager.

The Tribunal reasoned that the nominator had not demonstrated a genuine need for the position, particularly as the visa applicant had not been appointed to the full-time role despite the nomination being made in February 2015. The Tribunal found the explanation for not appointing the visa applicant to the full-time role until the visa was granted unconvincing, noting that the process of notifying Australia Post was a simple written communication. Furthermore, the Tribunal was not satisfied that the position could not be filled by a local Australian. Consequently, the Tribunal affirmed the decision to refuse the nomination.