SFG QLD PTY LTD ATF SFG TRUST (Migration)

This matter concerned an application by SFG QLD PTY LTD ATF SFG TRUST for approval of a nomination of a position under the Temporary Residence Transition stream. The dispute arose because the delegate refused the application, finding that the nominee did not satisfy the requirements of regulation 5.19(5)(f) of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant met the general requirements for approval of the nomination under reg 5.19(4) and the specific requirements of reg 5.19(5).

The core legal issue was whether the nominee had been employed full-time in Australia for at least three years within the four years immediately preceding the nomination application, as required by reg 5.19(5)(f). This regulation mandates that the nominee must have held a relevant visa (Subclass 457 or 482 Medium-term stream) and been employed in the nominated position on a full-time basis in Australia for the specified period, excluding any unpaid leave. The Tribunal also considered whether it could be satisfied that the nominator was actively and lawfully operating a business in Australia and that there was a genuine need for the nominee's employment in the position.

The Tribunal affirmed the delegate's decision to refuse the nomination. This was primarily because the applicant failed to provide current information in response to the Tribunal's invitation, leaving the Tribunal unable to be satisfied that the nominee met the work experience requirements of reg 5.19(5)(f). Furthermore, in the absence of current information, the Tribunal could not be satisfied that the nominator was actively and lawfully operating a business or that there was a genuine need for the nominee's employment. Consequently, the Tribunal was not satisfied that all the relevant criteria under reg 5.19 were met.