THE TRUSTEE FOR GEN2 GROUP DISCRETIONARY TRUST (Migration)

This matter concerned an application for approval of a nomination of a position under the Direct Entry stream, brought before the Administrative Appeals Tribunal. The applicant, The Trustee for Gen2 Group Discretionary Trust, sought to have a decision reviewed, which had refused to approve its nomination.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of its nomination under regulation 5.19(4) of the Migration Regulations 1994. This involved assessing various criteria, including the compliance of the application form, the active and lawful operation of the nominator's business, whether the position was labour-hire, the financial capacity to employ the nominee for at least two years, and the absence of adverse information known to Immigration, or the reasonableness of disregarding such information.

The Tribunal found that the applicant had provided extensive and updated financial information, along with credible oral evidence from the director and the nominee, which satisfied the requirements. Crucially, the Tribunal accepted the nominee's explanation regarding his immigration history and work rights, including a period of unemployment from March 2017 to December 2019. This evidence, supported by a detailed statutory declaration, addressed concerns raised by the delegate regarding the nominee's employment status at the time of the nomination's lodgement. The Tribunal concluded that, based on the cumulative findings, all requirements of regulation 5.19(4) were met.

Consequently, the Tribunal set aside the original decision and substituted a new decision approving the nomination.