The Trustee for Superate Unit Trust (Casterton) (Migration)

The Administrative Appeals Tribunal considered an application by The Trustee for Superate Unit Trust (Casterton) concerning the approval of a nomination for a position under the direct entry stream. The core of the dispute was whether the applicant had met the requirements for the nomination to be approved, as stipulated by the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had satisfied the general requirements for approval of a nomination under regulation 5.19(4) and the specific requirements for the Direct Entry stream under regulation 5.19(9). This involved assessing whether the application was made in the approved form, accompanied by the prescribed fee, and included the necessary written certification. It also required consideration of whether there was any adverse information known to Immigration about the nominator or associated persons, and whether the nominator had a satisfactory record of compliance with employment laws. For the Direct Entry stream, further requirements included the nominator actively and lawfully operating a business, a genuine need for the nominated position, and the capacity to employ the identified person for at least two years.

The Tribunal found that the applicant had not met the requirements of regulation 5.19. Specifically, the application was not accompanied by a response to the Tribunal's invitation to provide information, nor was there evidence of sufficient labour market testing or approval from a regional authority, which are implicit requirements for certain nominations. The Tribunal noted that the application was made on 10 April 2018, and the written certification provided was dated prior to the introduction of new requirements for annual turnover and nomination training contribution charges, which were introduced on 12 August 2018. As not all mandatory requirements were satisfied, the Tribunal concluded that the nomination must be refused.

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