Condor Energy Services Limited (Migration)

The Administrative Appeals Tribunal (AAT) considered a review of a decision to refuse the approval of a nominated position by Condor Energy Services Limited (the applicant) under the Temporary Residence Transition stream of the Employer Nomination Scheme (Subclass 186) visa. The dispute centred on whether the applicant met the requirements for approving the nominated position, specifically concerning the nominator's financial capacity to employ the identified person.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the general requirements for approval of a nomination under reg 5.19(4) and the stream-specific requirements under reg 5.19(5) of the Migration Regulations 1994. This included assessing whether the applicant's business had the financial capacity to employ the identified person for at least two years and to pay them at least the annual market salary rate for the occupation each year, as stipulated by reg 5.19(5)(n).

The Tribunal found that the applicant had not provided any updated information regarding its business or the nominated position since the review application was lodged, and the delegate's decision was made approximately 35 months prior. Based on the available evidence, the Tribunal was not satisfied that the applicant had demonstrated the capacity to employ the identified person for at least two years and to pay the required salary rate. Consequently, the Tribunal concluded that reg 5.19(5)(n) was not met, which in turn meant that reg 5.19(4)(e) was also not satisfied. As one of the required criteria under reg 5.19 was not met, the Tribunal deemed it unnecessary to consider the remaining criteria.

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