The Trustee for the Okrich Family Trust (Migration)

The Administrative Appeals Tribunal considered an application by The Trustee for the Okrich Family Trust concerning the refusal of a nomination for a position under the Direct Entry stream. The core dispute revolved around whether the applicant met the requirements for approval of this nomination, specifically concerning the financial capacity to employ the nominee for two years and the alignment of the nominated position's tasks with an eligible occupation.

The Tribunal was required to determine if the applicant had satisfied the criteria set out in regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether the nominated employee would be employed full-time for at least two years and whether the tasks of the nominated position were sufficiently aligned with an occupation specified by the Minister, as opposed to a role such as a retail supervisor.

The Tribunal's reasoning centred on the applicant's failure to respond to a letter issued under section 359(2) of the Migration Act 1958, which invited the provision of updated and current information regarding all nomination requirements. As no information was provided, the Tribunal could not be satisfied that the applicant met the criteria, particularly regarding its financial capacity to employ the nominee for the requisite period and the nature of the nominated position's duties. The Tribunal applied the principles that all relevant criteria must be met at the time of the decision and that the onus was on the applicant to provide sufficient evidence to satisfy the delegate and subsequently the Tribunal.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination, finding that the applicant had not met the requirements of regulation 5.19(4).