The Trustee for Spice Dine Unit Trust (Migration)

The Administrative Appeals Tribunal considered a review application by The Trustee for Spice Dine Unit Trust concerning the refusal of a nomination for a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream. The core of the dispute revolved around whether the applicant, as the nominator, had satisfied the requirements for approving the nomination under regulation 5.19 of the Migration Regulations 1994.

The Tribunal was required to determine if the nominator had demonstrated a genuine need for the identified person to be employed in the nominated position, and if the business had the financial capacity to employ the identified person for at least two years and pay them at least the annual market salary rate. Specifically, the Tribunal had to assess compliance with regulations 5.19(5)(j), (k), and (n), which pertain to the genuine need for employment, the direct control of the nominator, and the nominator's financial capacity for future employment, respectively.

The Tribunal's reasoning focused on the lack of updated information provided by the applicant. Despite being invited to provide current details pursuant to section 359 of the Act, the applicant had not submitted any information since October 2019. In the absence of contemporary evidence regarding the applicant, the business, and the nominee, the Tribunal was not satisfied that there was a genuine need for the identified person's employment under the nominator's direct control, nor that the business possessed the capacity to employ the individual for the requisite period and salary. Consequently, the Tribunal found that the requirements of regulations 5.19(5)(j), (k), and (n) were not met.

As the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19, it was compelled by regulation 5.19(3)(b) to refuse the nomination. Accordingly, the Tribunal affirmed the original decision to refuse the nomination.