M K Painting Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a dispute concerning the approval of a nomination under the Direct Entry nomination stream. The applicant, M K Painting Pty Ltd, sought approval for a nominated position, but this was refused by the delegate. The Tribunal was tasked with reviewing this refusal.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had identified a need to employ a paid employee to work in the nominated position under the applicant’s direct control, as required by regulation 5.19(4)(a)(ii).

The Tribunal found that the applicant had not provided sufficient information to satisfy this requirement. Despite the delegate's decision being made approximately 37 months prior, no updated or current information regarding the applicant's business or the nominated position was presented to the Tribunal. Consequently, the Tribunal was not satisfied that the applicant had demonstrated a genuine need for the nominated position to be filled by a paid employee under its direct control. As this was a mandatory criterion for approval under regulation 5.19(4), the Tribunal concluded that the applicant had failed to meet the applicable criteria.

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