GUNFULL PTY LTD (Migration)

This matter concerned an application by GUNFULL PTY LTD for approval of a nomination under the Direct Entry nomination stream. The Administrative Appeals Tribunal, constituted by Member Jade Murphy, 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. The core of the dispute centred on whether the nominated employee would be employed for at least two years and whether the terms of employment expressly excluded the possibility of an extension.

The Tribunal was required to assess compliance with regulation 5.19(4)(d), which stipulates that the employee must be employed full-time for at least two years and that the terms and conditions of employment must not expressly exclude the possibility of an extension. The Tribunal had requested further information from the applicant, and in response, an employment contract commencing 1 October 2022 was provided. This contract specified that the term of employment was fixed, ending two years after the approval of the nominee's subclass 187 visa application.

The Tribunal reasoned that the wording of the employment contract, specifically the provision that the term was fixed and contingent on the visa approval date, constituted an express exclusion of the possibility of extending the employment beyond two years. As the applicant did not provide any submissions or information to counter this interpretation, the Tribunal concluded that the requirement under regulation 5.19(4)(d)(ii) was not met. Consequently, the Tribunal was not satisfied that the applicant met all the necessary criteria for the nomination to be approved.

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