Erb Hands on Marketing Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse a nomination for a visa under the Direct Entry stream. The applicant, Erb Hands on Marketing Pty Ltd, sought approval for a nominated position, but the Department had refused this nomination. The Tribunal, presided over by Member Nicola Findson, considered whether the applicant met the requirements for approval under regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the nominated position met the criteria for a 2-year full-time term of employment and whether the nominating employer demonstrated sufficient financial capacity to sustain this employment. Specifically, the Tribunal had to determine if the applicant had provided adequate evidence of its financial viability to pay the nominated salary for the required duration, and whether the applicant had responded appropriately to an invitation to provide further information.

The Tribunal reasoned that regulation 5.19(4)(d) requires the nominee to be employed for at least two years, with no express exclusion of an extension. The applicant failed to demonstrate the financial capacity to meet this requirement. Despite initial projections, financial statements showed losses, and wage expenditure did not align with the number of staff. Crucially, the applicant did not respond to a departmental invitation to provide a payroll summary, nor did it provide any new financial information to the Tribunal. Without contemporary financial data, the Tribunal could not be satisfied that the business could sustain the nominated employment for the requisite period.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.