IRS & DMGT Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by IRS & DMGT Pty Ltd for the approval of a nomination for a Software Engineer position under the Direct Entry stream. The dispute concerned whether the applicant met the general and stream-specific requirements for the nomination as set out in regulation 5.19 of the Migration Regulations 1994. The Tribunal was tasked with determining if there was a genuine need for the nominated position, if the nominator had the financial capacity to employ the nominee, and if the tasks of the position were adequately defined and aligned with the nominee's role within the business.

The Tribunal was required to assess the applicant's compliance with regulation 5.19(4) and, specifically for the Direct Entry stream, regulation 5.19(9). Key issues included the provision of contemporary financial information to substantiate the business's capacity to employ the nominee and the clarity of the nominee's role within the business structure, particularly in relation to other employees and directors. The Tribunal noted the absence of current certified financial statements or taxation returns, with only an uncertified schedule of accounts for 30 June 2017 and a single Business Activity Statement provided, which were deemed insufficient to reliably assess future employment capacity.

In its reasoning, the Tribunal applied the principles of regulation 5.19, which mandates that all requirements for a nomination to be approved must be met. The Tribunal found that the applicant failed to provide adequate contemporary financial information to demonstrate the business's capacity to employ the nominee for at least two years and to pay the annual market salary rate, as required by regulation 5.19(9)(g). Furthermore, the lack of current information prevented the Tribunal from adequately assessing the genuine need for the position and how it integrated within the overall business operations, a crucial element under regulation 5.19(9)(d). The Tribunal also highlighted that the applicant did not respond to an invitation to provide current information, which would have assisted in assessing the nominee's role and the business's operational context.

Consequently, the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19. As a result, pursuant to regulation 5.19(3)(b), the nomination was refused, and the decision under review was affirmed.