Positive Fix Pty LTd (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning Positive Fix Pty Ltd's nomination for an Architectural Draftsperson position under the Direct Entry stream. The core dispute revolved around whether the applicant had adequately demonstrated a need to employ a paid worker for the nominated position under the nominator's direct control, as required by the Migration Regulations 1994. The applicant did not attend the hearing before the Tribunal.

The legal issue before the Tribunal was to determine if the nomination application met all the requirements for approval under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the applicant had identified a genuine need for a paid employee to work in the nominated position under the nominator's direct control, a requirement stipulated in regulation 5.19(4)(a)(ii). The Tribunal also considered whether the application otherwise satisfied the prescribed form, fee, and certification requirements under regulation 5.19(2).

The Tribunal reasoned that for a nomination to be approved, all relevant requirements must be met, as per regulation 5.19(5). The Department had previously refused the nomination on the grounds that the applicant had not identified a need for a paid employee under the nominator's direct control, failing to meet regulation 5.19(4)(a)(ii). Despite being provided with the delegate's decision outlining these issues, the applicant failed to provide any further documentation to the Tribunal or attend the hearing to present evidence or arguments. The Tribunal found that the application met regulation 5.19(4)(a)(i) concerning the form, fee, and certification, but crucially, it found that the applicant had not satisfied the requirement under regulation 5.19(4)(a)(ii) to identify a need for the nominator to employ a paid employee under their direct control.

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