D COMPANY PTY LTD (Migration)

The Administrative Appeals Tribunal, constituted by Member Karen McNamara, considered an application by D Company Pty Ltd concerning the refusal of a nomination for the position of Cook under the Direct Entry Nomination stream. The core dispute revolved around whether the applicant, as the nominator, had demonstrated a genuine need to employ a paid Cook under their direct control, as required by migration regulations.

The primary legal issue before the Tribunal was to determine if the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to be satisfied that the application identified a need for the nominator to employ a paid employee to work in the nominated position under their direct control, as stipulated by regulation 5.19(4)(a)(ii).

The Tribunal's reasoning focused on the applicant's failure to provide requested information regarding the need for the nominated position. Despite an invitation from the Tribunal to supply updated and current information, the applicant did not respond. Consequently, the Tribunal was unable to be satisfied that the applicant met the requirements of regulation 5.19(4)(a)(ii) at the time of its decision. As this requirement was not met, the Tribunal did not need to consider the remaining criteria under regulation 5.19(4).

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination. The applicant had not satisfied the requirements of regulation 5.19(4), and had not sought to satisfy the criteria for the Temporary Residence Transition Nomination stream, meaning the nomination could not be approved.