THE TRUSTEE FOR RASHAYS MACQUARIE UNIT TRUST (Migration)

The Administrative Appeals Tribunal considered an application by The Trustee for Rashays Macquarie Unit Trust concerning the refusal of a nomination. The core of the dispute revolved around whether the nominator met the specific requirements for approving a nominated position under the Migration Regulations 1994.

The Tribunal was required to determine if the nominator satisfied the criteria for a Temporary Residence Transition nomination as set out in regulation 5.19(3) of the Migration Regulations 1994. This involved assessing whether the applicant's nominated occupation matched the occupation held by the Subclass 457 visa holder, the nominator's status as the standard business sponsor, and whether the nominator had actively and lawfully operated a business in Australia. Furthermore, the Tribunal had to consider the employment history of the visa holder and the proposed terms and conditions of employment.

The Tribunal's reasoning focused on the applicant's failure to meet the requirements of regulation 5.19(3). Specifically, the Tribunal found that the applicant had not demonstrated that the nominated position met the necessary criteria, nor had they sought to satisfy the requirements of the Direct Entry nomination stream under regulation 5.19(4). The Tribunal applied the provisions of the Migration Regulations 1994, concluding that the evidence presented did not establish compliance with the mandatory conditions for approval.

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