Country Cauldron Pty Ltd (Migration)

Country Cauldron Pty Ltd (the applicant) sought review of a decision to refuse its nomination under the Direct Entry stream of the Subclass 187 visa. The dispute concerned whether the applicant met the requirements for approval of the nomination, specifically regarding the genuineness of the nominated position and the applicant's financial capacity to employ the nominee. The matter was heard by Terrence Baxter.

The legal issues before the court were whether the nominated position was genuine and whether the applicant possessed the financial capacity to pay the nominated full-time salary for the duration of the employment period. Regulation 5.19(4) of the Migration Regulations 1994 was central to the determination, requiring the nominee to be employed in the nominated position for at least two years full-time, with terms and conditions that do not exclude the possibility of an extension. The court also considered the principle established in *MIBP v Jayshree Enterprises Pty Ltd* [2017] FCA 264, which allows for consideration of the applicant's financial resources to meet wage costs.

The court found that the applicant failed to provide contemporary evidence of its current trading status, and the nominated position was not genuine. While the employment agreement stipulated a two-year term, renewable, the financial statements for the 2017 and 2018 financial years revealed significant trading losses totalling $227,824.44 over the two-year period, despite substantial sales increases. The applicant also had a surplus of liabilities over assets in both financial years. Consequently, the court had serious concerns about the applicant's capacity to employ the nominee at the nominated salary of $56,500 per annum plus superannuation for the required period.

The decision under review to refuse the nomination was affirmed.