MAGIC ELBOW PTY. LTD. (Migration)

This matter concerned an application for approval of a nomination of a position under the Temporary Residence Transition stream, brought before the Administrative Appeals Tribunal by Magic Elbow Pty. Ltd. The dispute centred on whether the applicant met the requirements for such an approval.

The primary legal issue before the Tribunal was whether the applicant had demonstrated a genuine need to employ the nominee as a paid employee to work in the nominated position under the nominator’s direct control, as required by regulation 5.19(3)(i) of the Migration Regulations 1994. The Tribunal also considered whether the applicant had met the other criteria stipulated in regulation 5.19(3) for the approval of the nomination.

The Tribunal affirmed the decision to refuse the nomination. It noted that the application had been before the Tribunal for almost two years and that, despite an invitation under section 359 of the Migration Act 1958 to provide further information, the applicant had not submitted any documents. Consequently, the Tribunal accepted the delegate's decision record as an accurate summary of the factual matters and concluded that the applicant had failed to demonstrate a genuine need for the nominee to work in the position of massage therapist under their control. As this requirement was not met, the Tribunal found that the applicant did not satisfy the criteria under regulation 5.19(3). The Tribunal also noted that the applicant had not sought to satisfy the criteria for the Direct Entry nomination stream under regulation 5.19(4).

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