SHANE CONNOLLY (Migration)

This matter concerned an application for review of a decision to refuse the approval of a nomination under the Direct Entry stream of the employer nomination scheme. The applicant sought to nominate Ms Narinder Kaur for the position of Systems Analyst (ANZSCO 261112). The delegate had refused the nomination, finding that the applicant had not provided a position description and that the duties outlined in job advertisements did not correlate with the ANZSCO description, thus failing to satisfy regulation 5.19(4)(h)(ii)(D) of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under regulation 5.19(4).

The primary legal issues before the Tribunal were whether the nominated position's roles and duties corresponded to the specified occupation in ANZSCO, and whether the nominator was actively and lawfully operating a business in Australia. The Tribunal had invited the applicant to provide updated information regarding the nominated position's duties and their correspondence to the ANZSCO description, as well as information about its financial circumstances and active, lawful operation of a business in Australia. Crucially, the applicant failed to respond to this invitation and provide any updated information.

The Tribunal reasoned that for a nomination to be approved, all relevant criteria under regulation 5.19(4) must be met at the time of the decision. Given the applicant's failure to provide information demonstrating that the tasks of the nominated position corresponded to the ANZSCO description, and its failure to provide evidence that it was actively and lawfully operating a business in Australia, the Tribunal could not be satisfied that the requirements of regulation 5.19(4)(h)(ii)(D) and 5.19(4)(b) were met. The Tribunal applied the principle that the onus is on the applicant to satisfy the criteria for approval.

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