Full Tilt Transport Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Full Tilt Transport Pty Ltd for approval of a nomination for a visa under the Direct Entry stream. The nomination was for the position of Fleet Manager, with a proposed salary of $65,000 per annum, in favour of Mr Zhichao DU. The business, operated by founder and director Mr Craig Graham, was a successful transport company with significant turnover and a number of employees. Mr Graham intended to retire and spend more time with his family.

The primary legal issue before the Tribunal was whether 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 determine if there was a genuine need for the nominated position, as required by regulation 5.19(4)(h)(ii)(B). This involved assessing whether the proposed employment satisfied the criteria for a paid employee working under the nominator's direct control, and whether the position could not be filled by an Australian citizen or permanent resident.

The Tribunal affirmed the decision to refuse the nomination. It found that while the business was profitable and the director intended to retire, the employment contract stipulated that the nominee's employment was to commence three months after the visa grant. This timing, coupled with the fact that the position had been advertised and remained unfilled for a significant period, raised questions about the genuine and immediate need for the nominee in the role. The Tribunal also noted that the position was responsible for employees earning greater salaries, suggesting a level of seniority that required a clear demonstration of necessity. The Tribunal also addressed procedural matters, confirming that it had complied with section 359AA of the Act by orally informing the applicant of information that would form the basis of its decision and inviting a response.