Bell and Barnett International Trading Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the approval of a nomination for a Subclass 457 visa under the Temporary Residence Transition nomination stream. The applicant, Bell and Barnett International Trading Pty Ltd, sought to have its nomination approved, but this decision was under review by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the nominating business had demonstrated sufficient financial capacity to employ the nominated individual, a Corporate Treasurer, on a full-time basis for at least two years, as stipulated by regulation 5.19(3)(d).

The Tribunal's reasoning focused on the lack of evidence regarding the nominating business's financial capacity. Despite being invited by the Tribunal to provide information under subsection 359(2) of the Act, the applicant failed to respond. The only financial information available was at least two years old and therefore could not be given weight. Consequently, the Tribunal was not satisfied that the nominating business had the financial capacity to pay the nominated salary for the required two-year period, meaning regulation 5.19(3)(d) was not met. As all requirements of regulation 5.19(3) must be satisfied for approval, and the applicant had not sought to satisfy the criteria for the Direct Entry nomination stream, the nomination could not be approved.

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