Elite Education Institute Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse an application for approval of a nominated position under regulation 5.19 of the Migration Regulations 1994. The applicant, Elite Education Institute Pty Ltd, sought approval for a nomination for the position of Management Accountant under the Temporary Residence Transition stream of the Employer Nomination Scheme (Subclass 186 visa) in favour of Mrs Ailin Dong. The original decision by the delegate refused the application on the basis that the nominator's business lacked sufficient financial capacity to employ the nominee for at least two years and pay the nominee at least the annual market salary rate.

The Tribunal was required to determine whether the applicant met all the relevant criteria under regulations 5.19(4) and 5.19(5) of the Migration Regulations 1994 at the time of the decision. This involved assessing various requirements, including application procedures, absence of adverse information, mandatory licensing or registration, satisfactory compliance with employment laws, payment of training contribution debts, the visa status of the identified person at the time of application, and specific occupation and employment conditions related to the nominee's visa history and the nominator's business operations. A key issue was whether the nominator's business had the financial capacity to employ the nominee for at least two years and pay the annual market salary rate.

The Tribunal found that the applicant met the general requirements under regulation 5.19(4), including that the application was made in the approved form, there was no adverse information, no mandatory licensing was required for a Management Accountant in New South Wales, the nominator had a satisfactory record of compliance with employment laws, and there were no outstanding training contribution debts. Furthermore, the Tribunal was satisfied that the nominee held the requisite visa at the time of application and met the occupation and employment requirements, having held a Subclass 457 visa for the required period and being employed in Australia. Crucially, the Tribunal found that the business genuinely needed the nominee's services and had the financial capacity to employ her for at least two further years, with the provided financial statements indicating substantial turnover and profit. The salary offered was also found to be above the market salary rate.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.