ITS IT AUSTRALIA PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by ITS IT Australia Pty Ltd concerning the refusal of a nomination under the Direct Entry nomination stream. The core dispute revolved around whether the applicant had provided sufficient evidence to demonstrate a genuine need for a paid employee to fill the nominated position under the nominator's direct control.

The legal issue before the Tribunal was to determine if the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994, specifically focusing on the criterion of demonstrating a genuine need for a paid employee. The Tribunal was required to make findings of fact based on the evidence presented, including internally generated financial documents, and assess whether these met the regulatory threshold.

The Tribunal reasoned that the financial documents provided were internally generated and could not be independently verified, lacking supporting ATO BAS statements, tax returns, or profit and loss statements. Despite requests for further information, including BAS statements and profit and loss statements, no such documentation was provided. Consequently, the Tribunal was not satisfied that there was a genuine need for a paid employee, as required by regulation 5.19(4)(h)(ii)(B). The applicant also did not seek to satisfy the criteria for the Temporary Residence Transition Nomination stream.

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.