DAVID ANTONY MCMAHON (Migration)

This matter concerned an application for approval of a nominated position under the Direct Entry stream of the Employer Nomination Scheme (Subclass 186) visa. The applicant sought to nominate a position as a Tennis Coach. The Tribunal was required to determine whether the applicant met the general requirements for approval of the nomination under reg 5.19(4) and the stream-specific requirements under reg 5.19(9) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had demonstrated a genuine need for the nominated position, as required by reg 5.19(9)(c) and (d). This regulation mandates that the nomination application must identify a need for the identified person to be employed in the position under the direct control of the nominator, and that this need must be genuine. The Tribunal had invited the applicant to provide information substantiating this need, but no response was received.

The Tribunal reasoned that, in the absence of any response to its invitation for further information, it was unable to be satisfied that the applicant had identified a need for the nominated position. Given that almost four years had elapsed since the review application was lodged and over three and a half years since the applicant last provided submissions, the Tribunal concluded that it could not be satisfied that reg 5.19(9)(c) was met. As this requirement was not met, reg 5.19(4)(f) was also not satisfied, and consequently, the Tribunal was not satisfied that the applicant met the overall requirements of reg 5.19.

The Tribunal affirmed the decision under review to refuse the nomination.