Stone Art Group Pty Ltd (Migration)

The Administrative Appeals Tribunal considered an application by Stone Art Group Pty Ltd for approval of a nominated position under the Employer Nomination Scheme (Subclass 186) visa, Direct Entry stream, for the occupation of Stonemason. The dispute arose from the Tribunal's decision to affirm the refusal of the nomination, which was lodged in favour of Mr Sabah Hello.

The primary legal issues before the Tribunal were whether the nominator 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 determine if the nominator was actively and lawfully operating a business, if there was a genuine need for the nominated person to be employed in the position, and if the nominator had provided sufficient evidence to satisfy these criteria.

The Tribunal's reasoning focused on the nominator's failure to respond to an invitation to provide updated evidence, particularly financial information such as tax returns and BAS statements, which were required to demonstrate that the business was actively and lawfully operating. The Tribunal found the evidence on hand to be "scant" and was therefore not satisfied that regulation 5.19(9)(a) was met. Furthermore, the Tribunal was not satisfied that there was a genuine need for the nominated person to be employed as a Stonemason, as the nominator had not provided expected documentation such as an organisation chart, work samples, or details on how the position contributed to business expansion or increased turnover. Consequently, regulations 5.19(9)(c) and (d) were also not met.

As the Tribunal was not satisfied that the nominator met the requirements of regulation 5.19, specifically subregulations (9)(a), (c), and (d), it was required under regulation 5.19(3)(b) to refuse the nomination. Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.