A Falzon & A J Falzon (Migration)

This matter concerned an appeal by A Falzon & A J Falzon (the applicants) against a decision to refuse the approval of a nominated position under the Direct Entry nomination stream of the Employer Nomination scheme. The decision under review was made by the Department of Immigration, and the appeal was heard by the Migration Tribunal.

The primary legal issue before the Tribunal was whether the applicants had satisfied all the requirements for the approval of the nominated position as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the applicants had provided evidence that a Regional Certifying Body had provided the required advice concerning the nominated position, as stipulated by regulation 5.19(4)(h)(ii)(F).

The Tribunal reasoned that regulation 5.19(4)(h)(ii)(F) mandates that a body specified by the Minister, and located in the same State as the nominated position, must advise the Minister on certain matters. The applicants had not provided any evidence, such as a Form 1404, to demonstrate that such advice had been obtained. Furthermore, the nomination application itself indicated that no Regional Certifying Body had certified the nomination. The Tribunal noted that previous departmental records also failed to locate evidence of such an assessment.

Consequently, the Tribunal was not satisfied that the applicants had met the requirements of regulation 5.19(4). As the applicants had not sought to satisfy the criteria under the Temporary Residence Transition Nomination stream, they had not met the requirements of regulation 5.19(3) either. Therefore, the Tribunal affirmed the decision under review to refuse the nomination.