1922515 (Migration)

The applicant, [Company 1], sought review of a decision by a delegate of the Minister for Home Affairs to refuse approval of a nomination for a position under the Direct Entry stream of regulation 5.19 of the Migration Regulations 1994 (Cth). The nominated position was that of a retail manager. The delegate's refusal was based on the finding that the tasks to be performed in the nominated position did not correspond to the tasks of the occupation specified in the relevant instrument, contravening regulations 5.19(4)(h)(ii)(D) and 5.19(4)(h)(i). The hearing before the Tribunal was conducted concurrently with the review of the visa applications of the nominated employee, [Mr C], and his wife, [Ms D].

The primary legal issue before the Tribunal was whether the nominated position met the requirements of regulation 5.19 of the Migration Regulations 1994 (Cth) for approval under the Direct Entry stream. This involved determining if the tasks of the nominated role aligned with the specified occupation. A significant development occurred between the application for review and the hearing: the applicant sold the business where the nominated employee had worked since 2016 to [Company 2]. The nominated employee continued in the position under the new owners. The Tribunal also considered the circumstances surrounding the delay in scheduling the hearing, including the COVID-19 pandemic, and the applicant's health and psychological state, as well as the nominated employee's connection to the community and family ties, including an Australian-born child.

The Tribunal reasoned that while the sale of the business was a critical factor, the nominated employee's continued performance of the role under the new ownership, coupled with evidence of their value to the business and community involvement in a small town, presented a unique or exceptional circumstance not specifically anticipated by the legislation. The Tribunal noted that had the business not been sold, the nomination would likely have been approved. The Tribunal acknowledged the delay in the matter reaching a hearing and the impact this had on the applicants.

Ultimately, the Tribunal affirmed the Department's decision to refuse the nomination. However, in light of the unique circumstances, the Tribunal referred the case to the Department of Home Affairs or the Minister for consideration of intervention under the public interest powers conferred by section 351 of the Migration Act 1958 (Cth).