KAYROUZ CONSTRUCTIONS PTY. LIMITED (Migration)

This matter concerned an appeal by Kayrouz Constructions Pty. Limited against a decision to refuse its nomination of a position under the Temporary Residence Transition nomination stream. The core of the dispute revolved around whether the applicant had demonstrated a genuine need to employ the nominee, a Wall and Floor Tiler, under its direct control, particularly in light of the nominee's employment by related entities. The Administrative Appeals Tribunal was tasked with determining if the applicant met the requirements for approval of the nomination.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria set out in regulation 5.19(3) of the Migration Regulations 1994, specifically subregulation (3)(i), which requires a genuine need for the nominator to employ the person as a paid employee to work in the nominated position under the nominator’s direct control. This involved examining the relationship between Kayrouz Constructions Pty Ltd and Kayment Constructions Pty Ltd, and whether the nominee's work for both entities could be considered as being under the direct control of the nominator, Kayrouz Constructions.

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not met the requirements of regulation 5.19(3). While the applicant provided evidence of the nominee's employment by both Kayrouz Constructions and Kayment Constructions, including ASIC extracts, PAYG statements, and pay slips, the Tribunal noted that Kaymet Constructions was not a wholly owned subsidiary of Kayrouz Constructions. The organisational chart showed the companies operating as partners, sitting side by side, which did not establish that Kaymet Constructions operated under the direct control of Kayrouz Constructions. Consequently, the Tribunal was not satisfied that there was a genuine need for Kayrouz Constructions to employ the nominee under its direct control, as required by the regulations.