AK WEB DEVELOPERS (Migration)

This matter concerned an application by AK WEB DEVELOPERS for approval of a nominated position under the Temporary Residence Transition nomination stream. The applicant sought to have a nominated position approved, which was a prerequisite for a visa application. The core of the dispute revolved around whether the applicant, as the nominator, had demonstrated sufficient financial capacity to maintain the employment of the visa holder for the required period.

The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to assess if the applicant had provided sufficient evidence to satisfy the delegate, and subsequently the Tribunal, that the business possessed the financial capacity to employ the nominated individual full-time in the nominated position for at least two years. A key legal issue was the consequence of the applicant's failure to respond to the Tribunal's invitation to provide updated and current information regarding its financial circumstances and the terms of employment for the nominated position.

The Tribunal affirmed the delegate's decision to refuse the nomination. The Tribunal reasoned that it was unable to be satisfied that the applicant met the requirements of regulation 5.19(3), particularly the financial capacity to employ the nominee for at least two years. This inability stemmed from the applicant's failure to provide any response to the Tribunal's request for updated financial information, tax returns, business activity statements, financial statements, a job description, or a current employment contract. Without this information, the Tribunal could not be satisfied that the applicant would employ the nominee on a full-time basis for the requisite period, thus failing to meet the criteria under regulation 5.19(3)(d). Consequently, the Tribunal affirmed the decision under review to refuse the nomination.