The Trustee for Skymetrics (Migration)

The Administrative Appeals Tribunal considered a nomination application made by The Trustee for Skymetrics (Migration) for a Developer Programmer position in Cairns, Queensland, in favour of Ms Paritaben Pareshkumar PATEL, under the Subclass 186 visa program's Direct Entry stream. The core of the dispute revolved around whether the nominator met the legislative requirements for approving the nomination, particularly concerning the genuine need for the nominated position and the nominator's business capacity.

The Tribunal was required to determine if the applicant satisfied the general requirements for nomination approval under reg 5.19(4) and the specific requirements for the Direct Entry stream under reg 5.19(9) of the Migration Regulations 1994. Key issues included whether there was a genuine need for the nominator to employ a paid employee in the nominated position under their direct control, and whether the nominator's business had the capacity to employ the identified person for at least two years and pay them the annual market salary rate. The Tribunal also considered whether the applicant had provided requested information within the prescribed period.

The Tribunal found that the nominator had not provided updated or contemporary information in response to requests for evidence, including details about the genuine need for the position, an organisational chart, or evidence of business revenue or growth. Furthermore, the Tribunal noted that the business had never operated at the nominated address. As a result, the Tribunal was not satisfied that the requirement for a genuine need for the nominated person to be employed under the nominator's direct control (reg 5.19(9)(d)) was met. Consequently, the related requirement under reg 5.19(4)(f) was also not satisfied.

The Tribunal affirmed the decision under review to refuse the nomination.