Ex-RPH Trust ATF Mega 3 Pty Ltd (Migration)

This matter concerned an application for approval of a nomination of a position under the Direct Entry nomination stream, brought before the Administrative Appeals Tribunal. The applicant sought to have a nomination for the position of Cook at a restaurant trading as ‘Villa Romana’ approved.

The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the application identified a genuine need for the position, whether the nominator was actively and lawfully operating a business in Australia, and whether the proposed employment would be for at least two years.

The Tribunal found that the applicant had failed to provide updated information in response to a request from the Tribunal, despite being advised that failure to do so would result in the loss of entitlement to a hearing and the possibility of a decision being made without further action. Consequently, the Tribunal lacked sufficient information to establish a current genuine need for the position of Cook or evidence of full-time employment for at least two years, meaning regulation 5.19(4)(a) was not met. Furthermore, without the requested documentation, the Tribunal could not be satisfied that the nominator was actively and lawfully operating a business in Australia, thus failing to meet regulation 5.19(4)(b). As the failure to meet any one of these subparagraphs was sufficient to prevent approval, the Tribunal did not consider the remaining criteria.

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