Stormlight Pty Ltd ATF Hurst Family Trust (Migration)

This matter concerned an application by Stormlight Pty Ltd ATF Hurst Family Trust for approval of a nomination for a position under the Direct Entry stream of the Employer Nomination Scheme (Subclass 186) or Regional Sponsored Migration Scheme (Subclass 187) visa. The dispute centred on whether the applicant had demonstrated a genuine need for the nominated position of Computer Network and Systems Engineer. The decision was made by Karen McNamara, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination, specifically those set out in regulation 5.19(4) and the stream-specific requirements in regulation 5.19(9) of the Migration Regulations 1994. The critical sub-regulations in contention were 5.19(9)(c) and (d), which require the nomination application to identify a need for the identified person to be employed in the position under the direct control of the nominator, and that this need be genuine.

The Tribunal affirmed the decision to refuse the nomination. The Tribunal noted that the original delegate had refused the application because the nominator had not provided verifiable supporting documentation to demonstrate business expansion or substantiate claims of potential inability to meet client needs without the nominee. Crucially, the Tribunal had invited the applicant to provide updated information regarding the genuine need for the nominee's employment, but no response was received. Consequently, the Tribunal was unable to be satisfied that regulation 5.19(9)(d) was met, which in turn meant that regulation 5.19(4)(f) was not satisfied. As not all requirements for approval were met, regulation 5.19(3)(b) mandated the refusal of the nomination.