Sweet India Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a dispute concerning the approval of a nominated position under the Direct Entry Nomination stream. The applicant, Sweet India Pty Ltd, sought approval for a nominated position, but this was refused by the delegate. The Tribunal was tasked with reviewing this refusal.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had provided sufficient current information to satisfy the delegate that the nominated position could not be filled by an Australian citizen or permanent resident living in the same local area, and whether there was evidence of recent or proposed training expenditure.

The Tribunal affirmed the delegate's decision to refuse the nomination. The Tribunal noted that while the applicant had provided some information regarding recruitment efforts in 2016, this information was over two years old. The Tribunal had invited the applicant to provide updated and current information, including details about the need to employ the nominee and why the position could not be filled locally, suggesting examples such as local job advertisements or a Regional Certifying Body’s certificate. The applicant failed to respond to this invitation. Consequently, the Tribunal was unable to be satisfied that the criteria under regulation 5.19(4)(h)(ii)(C) were met at the time of the decision. Similarly, the applicant did not provide updated information regarding training expenditure, despite being invited to do so with examples of acceptable documentation. Without this current information, the Tribunal could not be satisfied that the applicant met the requirements for approval of the nomination.