5AAAB Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a review application by 5AAAB Pty Ltd concerning a decision to refuse the nomination of a position under the Direct Entry stream of the Migration Regulations 1994. The original delegate had refused the nomination, finding that the requirement for a genuine need to employ a paid employee was not met.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nominated position. Specifically, the Tribunal had to determine if there was a genuine need to employ a paid employee in the nominated position of Café or Restaurant Manager (ANZSCO 141111) and if the specified training expenditure requirements were met, as stipulated in subregulation 5.19(4)(h).

The Tribunal's reasoning centred on the applicant's failure to provide updated and current information requested by the Tribunal in a letter dated 10 August 2020. This information was sought to satisfy the criteria under regulation 5.19(4)(h)(ii)(B) regarding a genuine need for the position and regulation 5.19(4)(h)(i)(B) concerning training expenditure. Despite being provided with examples of the type of information that could be submitted, such as local job advertisements, a Regional Certifying Body’s certificate, or invoices for training, the applicant provided no response. In the absence of this crucial information, the Tribunal was unable to be satisfied that the requirements of regulation 5.19(4)(h) were met at the time of its decision.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal found that the applicant had not met the requirements of regulation 5.19(4) and, as such, the nomination could not be approved.