Mogal Pty Ltd (Migration)

The Administrative Appeals Tribunal considered an application by Mogal Pty Ltd concerning the approval of a nomination for a position under the Direct Entry stream. The dispute centred on whether the tasks associated with the nominated position, that of a Retail Manager (ANZSCO 142111), corresponded to those specified in the relevant legislative instrument and whether other requirements of the nomination criteria were met. The Department had previously refused the nomination application.

The primary legal issue before the Tribunal was to determine if Mogal Pty Ltd had satisfied all the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the approval of the employer nomination. This regulation outlines several alternative criteria, including requirements relating to the tasks of the position, the nominator's business operations, employment conditions, and, in certain circumstances, regional location and advice from a regional certifying body.

The Tribunal's reasoning focused on the lack of evidence provided by the applicant. Despite the Department's refusal in January 2018, and a subsequent invitation from the Tribunal in September 2019 to provide information demonstrating compliance with regulation 5.19(4), no response was received. The Tribunal considered its obligation to proceed to a decision based on the available evidence, referencing case law that indicates tribunals are not required to indefinitely defer decision-making processes. Given the absence of any evidence to satisfy the criteria, particularly concerning the correspondence of the position's tasks with an occupation specified by the Minister, the Tribunal concluded that the applicant had not met the requirements of regulation 5.19(4).

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