H DU & H.Q WU (Migration)

This matter concerned an application for approval of a nomination for the occupation of Cook under the Direct Entry nomination stream, brought before the Tribunal by the applicants H DU and H.Q WU. The core of the dispute revolved around whether the applicants had satisfied the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the genuine need for the nominator to employ the proposed nominee.

The Tribunal was required to determine if the applicants met the criteria outlined in regulation 5.19(4)(h)(ii) of the Migration Regulations 1994. This regulation sets out alternative requirements for a nomination to be approved, including conditions related to the location of the position and business, a genuine need for the nominee to be employed as a paid employee under the nominator's direct control, the inability to fill the position with a local resident, and correspondence of the position's tasks to a specified occupation. The Tribunal specifically considered whether the applicants had demonstrated a genuine need for the nominator to employ the nominee as a paid employee in the nominated position under their direct control.

The Tribunal reasoned that the applicants claimed to meet the requirements of regulation 5.19(4)(h)(ii), which necessitates a genuine need for the nominator to employ the nominee. The delegate had previously refused the application on the grounds that this genuine need was not demonstrated. The Tribunal had invited the applicants to provide further information regarding this genuine need, but no response was received. Consequently, the Tribunal was unable to be satisfied that the applicants had established a genuine need for the nominator to employ the nominee as a paid employee under their direct control, a key requirement of regulation 5.19(4)(h)(ii)(B).

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination, as the applicants had failed to satisfy the requirements of regulation 5.19(4)(h)(ii).