1512054 (Migration)

This matter concerned an application to affirm a decision to refuse a nomination under the Direct Entry stream of the Migration Regulations 1994. The applicant, who operates a property development business as a sole proprietor and has never employed anyone, sought to nominate an employee for the position of Business and Communication Development Consultant. The applicant claimed willingness and financial capacity to employ the nominee full-time for at least two years, despite an employment contract dated January 2015 for a role commencing February 2015, where the nominee had not yet worked for wages and had only performed unpaid tasks to test suitability.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the term of employment. Regulation 5.19(4)(d) mandates that the employee be employed full-time in the nominated position for at least two years, with terms and conditions that do not expressly exclude the possibility of an extension. The Tribunal also considered whether there was a genuine position available that would provide full-time employment for the required duration.

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not satisfied the requirements of regulation 5.19(4). The Tribunal was not persuaded that a genuine position existed that would provide full-time employment for at least two years, giving weight to the applicant's history of not employing anyone, the breach of the employment contract by not providing employment, and the applicant's admission that employment was conditional on the nominee being granted residency. The Tribunal also noted the applicant's apparent lack of awareness regarding the obligation to provide employment in the nominated occupation. Consequently, the nomination could not be approved.