BALENCE PTY LTD (Migration)

The Administrative Appeals Tribunal considered a dispute concerning the approval of a nomination for a Cook position under the Temporary Residence Transition stream. The applicant, Balence Pty Ltd, sought to have a decision refusing the nomination set aside. The nominator operated a pub and provided some financial information, but the delegate initially found that the business had not demonstrated sufficient financial capacity to employ the nominee for at least two years.

The Tribunal was required to determine whether Balence Pty Ltd met all the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to assess the nominator's financial capacity to employ the nominee for the required period, consider the terms and conditions of employment, and determine if there was any adverse information known to Immigration about the nominator or associated persons, and whether the nominator had a satisfactory record of compliance with workplace relations laws.

The Tribunal reasoned that while the nominator's own financial statements showed operating losses, financial statements for an associated entity, Winston Hills Hotel Trust, revealed a turnover exceeding $10 million annually. Although 2020 figures were unavailable due to the COVID-19 outbreak, the Tribunal accepted evidence that sales had recently increased. The Tribunal also found that there was no adverse information known to Immigration and that the nominator had a satisfactory record of compliance with workplace relations laws. Furthermore, the Tribunal considered that the nominee had previously been employed in the nominated position and that it was reasonable to disregard certain training requirements in light of the circumstances.

Consequently, the Tribunal set aside the original decision and substituted a decision approving the nomination.