Australian IT Solutions Pty Ltd (Migration)

The Administrative Appeals Tribunal (Cth) considered a decision by the Minister to refuse the approval of a nominated position for an ICT Customer Support Officer. The applicant, Australian IT Solutions Pty Ltd, sought to have this decision reviewed. The core of the dispute revolved around whether the nominated occupation met the requirements stipulated in the relevant migration regulations and associated instruments.

The primary legal issue before the Tribunal was to determine if the applicant had satisfied the criteria for the approval of the nomination, specifically in relation to Regulation 2.72(10)(h) of the Migration Regulations 1994. This regulation requires that an employer engage a nominee under a written contract of employment and provide a copy to the Minister, unless the nominated occupation is specified in the instrument IMMI 13/067. The Tribunal also had to consider whether the nominated occupation, ICT Customer Support Officer (ANZSCO 313112), was listed in the relevant ministerial instrument.

The Tribunal's reasoning focused on the failure of the applicant to provide a copy of the written contract of employment. It noted that the occupation of ICT Customer Support Officer was not listed in the instrument IMMI 13/067, meaning the exception to the written contract requirement did not apply. Despite the Department having cited the absence of the contract as a reason for refusal, and the Tribunal having requested this information under section 359 of the Migration Act 1958, a copy of the contract was not received. Consequently, the Tribunal found that the applicant did not meet the requirements of Regulation 2.72(10)(h)(i).

Based on the failure to meet this essential criterion, the Tribunal concluded that it was not satisfied that the applicant had met the applicable criteria for the nomination to be approved. Accordingly, the Tribunal affirmed the original decision to refuse the nomination.