MACROLINK & LANDREAM AUSTRALIA LAND P/L (Migration)

The Administrative Appeals Tribunal considered a decision to refuse the nomination of a position by Macrolink & Landream Australia Land Pty Ltd (MLAL) for Mr Yunpeng Gao. The core of the dispute revolved around whether MLAL met the requirements for approving the nomination under the Direct Entry stream, specifically concerning the proposed term of employment for the nominee.

The Tribunal was required to determine if the nominee, Mr Gao, would be employed full-time in the nominated position of Corporate General Manager for at least two years, and if the terms of employment would not expressly exclude the possibility of an extension, as stipulated by regulation 5.19(4)(d) of the Migration Regulations 1994. This involved assessing the nature of MLAL's business, its projected operational lifespan, and the genuine need for Mr Gao's role in light of the company's development project and potential future activities.

The Tribunal found that MLAL, a joint-venture company established for the Opera Residences building project, was scheduled to complete this project in March 2021. Evidence suggested that upon completion and sale of the development, the company would either cease to exist or move to new projects. While the applicant's representative argued that Mr Gao would be needed to manage retail spaces, even in the event of tenant default, the Tribunal was not satisfied that this constituted a genuine need for full-time employment for at least two years. The Tribunal noted that the potential need for management of untenanted spaces was conditional and speculative, and that MLAL already employed other staff who could potentially fulfil such roles.

Consequently, the Tribunal affirmed the decision to refuse the nomination, concluding that the applicant had not satisfied the requirements of regulation 5.19(4). As the applicant had not sought to meet the criteria for the Temporary Residence Transition Nomination stream, the nomination could not be approved.