JAI SACHIDANAND PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the nomination of a position under the Temporary Residence Transition stream. The applicant sought approval for a nomination for the position of Transport Company Manager, with the nominee holding a Subclass 457 visa. The core of the dispute revolved around whether the applicant had provided sufficient evidence to satisfy the requirements of regulation 5.19(3) of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the nominee had been employed in the nominated position for the requisite period of at least two years within the three years preceding the nomination application, and whether the employment was full-time and undertaken in Australia, as stipulated by regulation 5.19(3)(c)(i). Additionally, the Tribunal considered whether the nominee was identified in a nomination of an occupation as required by regulation 5.19(3)(c)(ii). The Tribunal also had to determine if it was satisfied that all relevant criteria were met at the time of its decision, given the applicant's failure to provide updated information.

The Tribunal's reasoning focused on the applicant's failure to provide requested updated and current information regarding the nominee's employment history and the business operations. Specifically, the Tribunal noted that the delegate had found that the applicant had not demonstrated that the nominee had been employed in the position of Transport Company Manager for at least two years, thus failing to meet regulation 5.19(3)(c)(i)(A)(II). Furthermore, the nominee was not identified in a nomination of an occupation as required by regulation 5.19(3)(c)(ii)(A). In the absence of the requested information, the Tribunal was unable to be satisfied that the criteria under regulation 5.19(3)(c) were met at the time of its decision.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal concluded that the applicant had not met the requirements of regulation 5.19(3) and, having not sought to satisfy the criteria in the Direct Entry Nomination stream, had not met the requirements of regulation 5.19(4). Therefore, the nomination could not be approved.