G SHARMA & P SHARMA (Migration)

This matter concerned an application for approval of a nominated position under the Direct Entry nomination stream, brought by G Sharma & P Sharma (the applicants) in their capacity as the nominators. The applicants sought to nominate Viral Bhupendra Bhai VYAS for the position of Restaurant Manager. The delegate had refused to approve the nomination, and the Tribunal was required to review this decision.

The central legal issue before the Tribunal was whether the applicants had satisfied the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the genuine need for the nominated position and the applicant's ability to meet the associated requirements. The delegate's refusal was based on a finding that the evidence did not demonstrate a genuine need for the nominee to be employed under the nominator's direct control, as stipulated in regulation 5.19(4)(h)(ii)(B).

The Tribunal considered the evidence provided by the applicants, including financial statements, lease agreements, and payroll documents, in relation to the requirements of regulation 5.19(4)(h). This regulation outlines alternative criteria, one of which requires a genuine need for the nominee to be employed as a paid employee under the nominator's direct control. The Tribunal found that the evidence did not establish this genuine need, particularly in light of the nominator's business no longer operating. Consequently, the Tribunal was not satisfied that the applicants met the requirements of regulation 5.19(4).

Accordingly, the Tribunal affirmed the delegate's decision to refuse the nomination.