Three Little Steps Pty Ltd and Slanted Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for approval of a nomination for a position under the Direct Entry stream. The parties involved were Three Little Steps Pty Ltd and Slanted Pty Ltd, acting as the nominator, and the Department of Home Affairs (represented by a delegate whose decision was under review). The core of the dispute centred on whether the nominator met the requirements for approving the nomination, particularly in light of certain adverse information that had come to the Department's attention.

The Tribunal was required to determine if the nominator satisfied the criteria set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether there was a genuine need for the nominated position, whether the nominator had the capacity to pay the nominee's salary, and crucially, whether there was any adverse information known to the Department about the nominator, and if so, whether it was reasonable to disregard such information. The Tribunal also considered the nominator's operational capacity and the nominee's qualifications and experience.

In its reasoning, the Tribunal found that the nominator had demonstrated a genuine need for the position, supported by evidence of its substantial business operations, including a restaurant and a large catering arm, which were returning to full operation after COVID-19 restrictions. The Tribunal was satisfied that the nominator had the capacity to pay the nominee's salary. Regarding the adverse information, which related to an unsubstantiated allegation of cash payments for a previous visa sponsorship, the Tribunal concluded that while the information was technically adverse, it was reasonable to disregard it due to its lack of substantiation, the passage of time, and the nominator's vigorous denial. The Tribunal noted that the allegation had not been investigated or substantiated by the Department.

Consequently, the Tribunal decided to set aside the delegate's decision and substitute it with a decision approving the nomination. This outcome was based on the Tribunal's finding that all the requirements of regulation 5.19(4) had been met, including the satisfactory handling of the adverse information.