FADMAR PTY LTD & STENA AUSTRALIA PTY LTD (Migration)

This matter concerned an appeal by Fadmar Pty Ltd and Stena Australia Pty Ltd, trading as Kinetto, against a decision to refuse their employer nomination for a Visa subclass 187 in the direct entry stream. The nomination was for the position of Cook, with a proposed salary of $53,000 per annum, in favour of Mr Giorgi Mesquita Cardoso Pinheiro Fernando. The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant had provided sufficient evidence to satisfy the requirements of regulation 5.19(4), particularly concerning the financial viability of the business and its capacity to employ the nominee for at least two years full-time, and whether the applicant had responded adequately to the Tribunal's request for updated information. The Tribunal had invited the applicant to provide updated financial information, including tax returns, business activity statements, and financial statements, as well as a job description and current employment contract, to assess the financial capacity to ensure the nominee's full-time employment for at least two years.

The Tribunal's reasoning focused on the applicant's failure to provide the requested updated information by the stipulated deadline, despite multiple invitations. The Tribunal noted that the provided documentation only went back to FY 2017, which did not allow for a contemporaneous assessment of the applicant's current financial capacity to meet the employment obligations. Crucially, the Tribunal found that there was scant assurance that the nominee would be employed for the required two-year period in the nominated position. Consequently, the Tribunal concluded that the requirement under regulation 5.19(4)(d) was not met.

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