Flash Gordon Trust (Migration)

The Administrative Appeals Tribunal considered a decision to refuse a nomination under the Direct Entry nomination stream. The applicant sought to have the nomination approved, but the Tribunal was required to determine whether the requirements of Regulation 5.19(4) of the Migration Regulations 1994 were met.

The Tribunal was tasked with determining two primary legal issues. Firstly, whether the nominee would be employed in the nominated position for at least two years full-time, as required by Regulation 5.19(4)(d). Secondly, the Tribunal had to consider whether there was any adverse information known to Immigration about the nominator or a person associated with the nominator, pursuant to Regulation 5.19(4)(f).

In relation to Regulation 5.19(4)(d), the Tribunal found that the contract of employment did not expressly state that the nominee would be employed for at least two years, and therefore this requirement was not met, despite a declaration in the application form. Regarding Regulation 5.19(4)(f), the Tribunal accepted evidence that the nominator, through its sole director Ms Johns, had failed to pay superannuation for six employees, resulting in an aggregate sum of $8,000 being owed. Ms Johns stated she was required by the Australian Taxation Office to pay this sum twice as a sanction for the non-payment. The Tribunal considered this to be adverse information known about a person associated with the nominator, and therefore this requirement was also not met.

Consequently, the Tribunal was not satisfied that the applicant met the requirements of Regulation 5.19(4). As the applicant had not sought to satisfy the criteria under the Temporary Residence Transition Nomination stream, the nomination could not be approved. The Tribunal affirmed the decision under review to refuse the nomination.