Titan Cranes & Rigging Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision by the Minister to refuse the approval of a nominated position for a Subclass 186 (Employer Nomination Scheme) visa, Direct Entry stream. The applicant, Titan Cranes & Rigging Pty Ltd, sought to nominate an individual for a Liaison Officer position. The core of the dispute revolved around whether the applicant had demonstrated a genuine need for the nominated employee, as required by the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant met the general requirements for approval of a nominated position under regulation 5.19(4) and the specific requirements for the Direct Entry stream under regulation 5.19(9) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if there was a genuine need for the identified person to be employed in the nominated position, under the direct control of the nominator, as stipulated by regulations 5.19(9)(c) and (d).

The Tribunal's reasoning focused on the applicant's failure to provide information demonstrating a genuine need for the nominated position. The Tribunal had issued an invitation under subsection 359(2) of the Migration Act 1958, requesting the applicant to provide written information to satisfy the criteria in regulation 5.19. As the applicant did not respond to this invitation, the Tribunal lacked contemporary information to assess the genuineness of the need. Consequently, the Tribunal was not satisfied that regulation 5.19(9)(d) was met, which in turn meant regulation 5.19(4)(f) was not satisfied.

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