The Trustee for Faqeer Sain Unit Trust (Migration)

The matter before the Tribunal concerned an employer nomination under the Direct Entry stream. The applicant sought approval for a nominated position, but the delegate had refused the nomination. The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issue was whether the applicant had satisfied the criteria for the Direct Entry nomination stream, specifically whether there was a demonstrated need for the nominator to employ a paid employee in the nominated position and whether the nominator had the financial capacity to do so for at least two years. The Tribunal also considered whether it could be satisfied that the criteria were met at the time of its decision, given the lack of updated information from the applicant.

The Tribunal reasoned that for the nomination to be approved, all the requirements of regulation 5.19(4) must be met. The Tribunal had invited the applicant to provide updated and current information regarding the nominated position and the business's needs, including details such as a position description, daily tasks, and an organisational structure chart. The applicant failed to respond to this invitation. Consequently, the Tribunal was unable to be satisfied that there was a genuine need for the nominated position or that the nominator had the financial capacity to employ the nominee for the required period. The Tribunal applied the principle that the onus is on the applicant to provide sufficient evidence to satisfy the decision-maker that the relevant criteria are met.

The Tribunal affirmed the decision under review to refuse the nomination, finding that the applicant had not provided the necessary information to demonstrate compliance with regulation 5.19(4)(a)(ii) and (d).