Vijaykumar R Patel For Zeneten Trust (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision to refuse the nomination of a Software Engineer position under the Direct Entry stream of the Employer Nomination Scheme (Subclass 186). The applicant, Vijaykumar R Patel for Zeneten Trust, sought to have this refusal overturned.

The primary legal issues before the Tribunal were whether the nominating business genuinely needed the identified person to be employed in the nominated position under the direct control of the nominator, as required by regulation 5.19(9)(d) of the Migration Regulations 1994, and whether the employment conditions for the identified person would be no less favourable than those for an Australian citizen or permanent resident performing equivalent work, as stipulated by regulation 5.19(9)(i).

The Tribunal noted that it had invited the applicant, under s 359(2) of the Migration Act 1958, to provide information demonstrating compliance with the relevant criteria, but the applicant failed to respond. In the absence of any contemporary information, the Tribunal was not satisfied that there was a genuine need for the identified person's employment or that the employment conditions would be no less favourable than those for an Australian worker. Consequently, the Tribunal found that the requirements of regulations 5.19(9)(d) and 5.19(9)(i) were not met.

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