THE TRUSTEE FOR RAPID UNIT TRUST (Migration)

The Administrative Appeals Tribunal considered a decision to refuse the nomination of a position by The Trustee for Rapid Unit Trust. The applicant sought to have a nominated position approved under the Direct Entry nomination stream of the Migration Regulations 1994. The Tribunal had before it the departmental file and additional documents submitted by the applicant, including company financials, an organisational chart, and an employment contract.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for the approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the nominated position identified a need for a paid employee to work under the nominator's direct control, and if other criteria relating to the nominator's business operations and the terms of employment were satisfied.

The Tribunal noted that while there is no formal onus of proof in administrative inquiries, it is incumbent upon the applicant to provide sufficient material to enable a decision-maker to establish the relevant facts. The Tribunal found that the application form outlined the position as a Management Consultant and that the organisational chart and employment contract indicated the nominated position would report to the Director, suggesting a degree of direct control. However, the Tribunal was not satisfied that the applicant had met all the requirements of regulation 5.19(4), nor had they met the criteria for the Temporary Residence Transition Nomination stream under regulation 5.19(3).

Consequently, the Tribunal affirmed the decision under review to refuse the nomination of the position.