The Trustee for Shri Ram Family Trust (Migration)

The Administrative Appeals Tribunal considered an application by The Trustee for Shri Ram Family Trust for approval of a nomination for a position under the Direct Entry stream. The dispute centred on whether the applicant genuinely needed to employ a paid worker in the nominated position of Retail Manager, given that the primary tasks were being performed by the owners of the business. The Tribunal was asked to determine if the applicant met the requirements for approval of the nomination under Regulation 5.19(4) of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant had demonstrated a genuine need for the nominated position, whether the position could not be filled by a locally resident Australian citizen or permanent resident, and whether the tasks of the position corresponded to those of an occupation specified in the relevant legislative instrument. Specifically, the Tribunal had to assess compliance with Regulation 5.19(4)(h)(ii)(B), which requires a genuine need for a paid employee under the nominator's direct control, and Regulation 5.19(4)(h)(ii)(C), which requires that the position cannot be filled by a local Australian.

The Tribunal reasoned that the evidence presented did not establish a genuine need for the nominated position. It noted that the owners of the business were performing most of the tasks associated with the Retail Manager role. Furthermore, the nominee had not been employed in the position for an extended period, even when the applicant was financially capable of doing so. The Tribunal also considered the impact of the COVID-19 pandemic on the business operations, but found that this did not override the fundamental lack of demonstrated genuine need. The advice of the regional certifying body was considered but found not to be determinative.

The Tribunal affirmed the decision under review to refuse the nomination, finding that the applicant had failed to satisfy the requirements of Regulation 5.19(4) of the Migration Regulations 1994.