MD&H Homeware Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a nomination application lodged by MD&H Homeware Pty Ltd (the applicant) for a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream. The nomination was for the position of Retail Manager, to be filled by Ms Sophie Huong Dam. The core of the dispute concerned whether the applicant had demonstrated a genuine need to employ the nominee in the nominated position, as required by the Migration Regulations 1994.

The Tribunal was required to determine if the applicant met the general requirements for approval of a nomination under regulation 5.19(4) and the specific requirements for the Direct Entry stream under regulation 5.19(9) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the application identified a need for the nominated person to be employed in the position and whether that need was genuine, as stipulated by regulations 5.19(9)(c) and (d).

The Tribunal reasoned that for a nomination to be approved, all regulatory requirements must be satisfied. In this instance, the applicant had failed to provide updated information demonstrating a genuine need for the nominated position, despite being invited to do so. The Tribunal noted that an employment contract and job description alone were insufficient, and the financial information provided was outdated and did not establish current profitability or operational need. The Tribunal also considered the weight to be given to advice from a Regional Certifying Body, referencing the Federal Circuit Court decision in *Bharaj Construction Pty Ltd v MIBP* [2016] FCCA 902, which held that such advice is not determinative of the requirements.

Ultimately, the Tribunal was not satisfied that the applicant had met the requirements of regulation 5.19. Consequently, pursuant to regulation 5.19(3)(b), the Tribunal refused to approve the nomination and affirmed the decision under review.