DR GUZZO PTY LTD (Migration)

This matter concerned an application by DR GUZZO PTY LTD for approval of a nomination of a position under the Direct Entry nomination stream. The applicant sought to nominate a position for a visa holder, who was also a director of the applicant company. The core of the dispute revolved around the applicant's financial capacity to provide the nominee with two years of full-time employment, as required by the Migration Regulations 1994. The decision was made by Susan Reece Jones, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the applicant had demonstrated sufficient financial capacity to employ the nominee full-time for at least two years, as stipulated by regulation 5.19(4)(d)(i). The Tribunal also considered whether the application was compliant with regulation 5.19(4)(a), whether the nominator was actively and lawfully operating a business in Australia under regulation 5.19(4)(b), and whether the nominated position was not a labour-hire arrangement under regulation 5.19(4)(c).

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had failed to satisfy the requirements of regulation 5.19(4)(d). While the Tribunal was satisfied that the application met the requirements of regulations 5.19(4)(a), (b), and (c), it found that the applicant had not provided sufficient evidence of its financial capacity to provide the nominee with two years of full-time employment. The latest tax return showed a financial loss, and there was a substantial difference between the documents provided. As failure to meet any one of the subparagraphs of regulation 5.19(4) is sufficient for the criteria not to be met as a whole, the Tribunal concluded that the nomination could not be approved.