Bourke Consolidated Pty Ltd (Migration)

This matter concerned an appeal by Bourke Consolidated Pty Ltd against a decision to refuse its business sponsorship nomination. The dispute centred on whether the company met the regulatory requirements for approving a nominated position under the Migration Regulations 1994. The case was heard by Sheridan Lee, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether Bourke Consolidated Pty Ltd had satisfied the criteria set out in regulation 5.19(4) of the Migration Regulations 1994 for the approval of its nominated position. Specifically, the Tribunal was required to assess if the application identified a genuine need for the nominator to employ a paid employee to work in the position under its direct control, and if all other applicable regulatory requirements were met.

The Tribunal reasoned that while the application was made in the approved form and the prescribed fee was paid, it failed to demonstrate a clear need for the nominated position of Marketing Specialist to be under the company's direct control. The Tribunal noted that it is for the applicant to provide sufficient material to enable a decision-maker to establish the relevant facts, and it is not for the Tribunal to fill any gaps in the evidence. In this instance, there was no evidence presented to satisfy the requirement that the company requires a marketing specialist under its direct control.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.