1514898 (Migration)

This matter concerned an appeal to the Migration Review Tribunal regarding the refusal of a nomination for a position. The applicant sought approval of a nomination under the Direct Entry stream of the Migration Regulations 1994. The core of the dispute revolved around whether the applicant had demonstrated a genuine need for a paid employee to fill the nominated position at the time the visa application was lodged.

The Tribunal was required to determine whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically subregulation (4)(a)(ii), which mandates that the application must identify a need for the nominator to employ a paid employee to work in the position under their direct control. This assessment was to be made in light of the evidence presented regarding the employment of another individual in the nominated role at the time of the application.

The Tribunal reasoned that while the application form was compliant and an employment contract had been offered and accepted, the evidence did not establish a need for a new employee. It found that at the time of the visa application on 20 May 2015, another employee, Mr. Bahtia, an Australian permanent resident, was already working full-time in the nominated position of Retail Store Manager. Mr. Bahtia continued in this role for several months after the nominee, Mr. Chopra, was appointed to the position in September or October 2015. Consequently, the Tribunal concluded that the applicant had not satisfied the requirement to identify a need for a paid employee at the relevant time.

The Tribunal affirmed the decision under review to refuse the nomination.