1517314 (Migration)

This matter concerned an application for approval of a nomination under the Direct Entry stream of the Employer Nomination scheme. The applicant sought to have a nomination approved, which had been refused by the delegate. The Administrative Appeals Tribunal, constituted by Member Kate Millar, was required to determine whether the applicant met the requirements for approval of the nomination.

The primary legal issue before the Tribunal was whether the applicant satisfied regulation 5.19(4)(d) of the Migration Regulations 1994, which requires the nominee to be employed in the nominated position full-time for at least two years, with no express exclusion of the possibility of an extension of employment. The delegate had refused the nomination on the basis that the business's financial capacity, as evidenced by its 2014 tax return and financial statements, did not demonstrate the ability to employ a person at the nominee's wage for two years.

The Tribunal considered the financial information provided, including the business's net profit and deductions for wages. Submissions were made arguing that the financial statements showed three full-time employees and that the business had experienced staff turnover. Further submissions indicated that two of the employees listed in the 2014 financial statements did not actually work for the business. However, no further financial information was provided despite a request. In the absence of sufficient financial evidence to satisfy the Tribunal that the nominee would be employed full-time for two years, the requirement under regulation 5.19(4)(d) was not met. As all requirements of regulation 5.19(4) must be satisfied, and the applicant had not sought to satisfy the criteria under the Temporary Residence Transition Nomination stream (regulation 5.19(3)), the nomination could not be approved.

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