Colser Investments Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a review application by Colser Investments Pty Ltd concerning the refusal of a nomination for a Café or Restaurant Manager position under the Direct Entry stream. The core dispute revolved around whether the nominating business met the requirements for approval, particularly regarding its financial capacity to employ the nominee for the required period.

The Tribunal was required to determine if the applicant had satisfied the criteria for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal needed to assess whether the nominating business had demonstrated sufficient financial capacity to employ the nominated person on a full-time basis for at least two years, as stipulated by regulation 5.19(4)(d).

In its reasoning, the Tribunal noted that the financial information provided was at least three years old and therefore could not be given any weight. Despite an invitation under section 359(2) of the Act to provide updated information demonstrating the business's financial capacity, the applicant failed to respond. Consequently, the Tribunal was not satisfied that the nominating business had the financial capacity to meet the employment requirements for the nominated position for the requisite two-year period. As this criterion under regulation 5.19(4)(d) was not met, the Tribunal did not need to consider the remaining requirements for approval.

The Tribunal affirmed the decision under review to refuse the nomination, finding that the applicant had not met the requirements of regulation 5.19(4). The applicant had also not sought to satisfy the criteria for the Temporary Residence Transition Nomination stream, thus failing to meet regulation 5.19(3).