MAHABIR PTY LTD (Migration)

This matter concerned an application by MAHABIR PTY LTD for approval of a nomination of a position under the Direct Entry nomination stream. The Administrative Appeals Tribunal was required to determine whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4) 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, particularly in light of the business's size, existing staffing, and declining turnover. The Tribunal also considered the alternative requirements under regulation 5.19(4)(h), specifically focusing on the criteria applicable to businesses located in regional Australia.

The Tribunal affirmed the decision to refuse the nomination, finding that regulation 5.19(4)(h)(ii)(B) was not met. This conclusion was based on the delegate's assessment that the applicant, a small business in a regional location with a director working part-time and a full-time manager, and experiencing declining turnover, had not established a genuine need for the nominated Catering Manager position. The Tribunal noted that no updated or current information was provided to counter the delegate's findings, and the provided financial statements for 2015/16 and 2016/17 did not support the assertion of a genuine need. The Tribunal also found that the applicant had not satisfied the requirements of regulation 5.19(3) relating to the Temporary Residence Transition Nomination stream.