KC International Consultants Pty Ltd (Migration)

This matter concerned an application by KC International Consultants Pty Ltd for approval of a nomination for a position as an arts administrator or manager under the direct entry stream. The Tribunal was required to determine whether the applicant met the general requirements for approval of a nomination under reg 5.19(4) and the specific requirements for the direct entry stream under reg 5.19(9) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had demonstrated a genuine need for the nominated position, as required by reg 5.19(9)(d). This regulation, read with reg 5.19(9)(c), requires the nomination application to identify a need for the identified person to be employed in the position under the direct control of the nominator, and that this need must be genuine. The Tribunal noted that the applicant had not provided any information or supporting documentation to address this requirement since lodging the application on 2 May 2018, despite a request for further information from the department on 22 February 2019.

The Tribunal considered the ANZSCO description for the nominated position of Arts Administrator or Manager (ANZSCO 139911) and concluded that the applicant had failed to demonstrate a genuine need to employ the identified person in the nominated position under its direct control. As no evidence was before the department or the Tribunal to substantiate the claim of a genuine need, the Tribunal was not satisfied that reg 5.19(9)(d) was met. Consequently, the Tribunal found that reg 5.19(4)(f) and therefore reg 5.19(4) were not met, leading to the mandatory refusal of the nomination under reg 5.19(3)(b). The Tribunal affirmed the decision under review to refuse the nomination.