GEMCOLE PTY LTD (Migration)

This matter concerned an appeal by GEMCOLE PTY LTD against a decision to refuse a nomination under the Direct Entry stream of the Regional Sponsored Migration Scheme employer nomination visa subclass 187. The nomination was for the position of Café or Restaurant Manager to be employed in Forbes, NSW, in favour of Ms Mellisa Silviana. The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994.

The legal issues before the Tribunal included whether the nominator was actively and lawfully operating a business in Australia, as required by reg 5.19(4)(b), and whether the nominee would be employed in the nominated position for at least two years, as stipulated by reg 5.19(4)(d). Additionally, the Tribunal considered reg 5.19(4)(h), which pertains to the tasks of the nominated position corresponding to an occupation listed in a legislative instrument, the genuine need for the position, and any applicable training requirements.

The Tribunal's reasoning focused on the applicant's failure to provide requested updated information. Despite an invitation from the Tribunal to supply current financial evidence, including tax returns and BAS statements, the applicant did not respond within the prescribed period. Consequently, the Tribunal could only consider the existing evidence, which was described as scant and several years out of date. Based on this limited evidence, the Tribunal was unable to be satisfied that the nominator was actively operating a business or had the financial capacity to employ the nominee full-time for at least two years. Furthermore, the Tribunal noted that the tasks of the nominated position did not correspond to the tasks of an occupation listed in the relevant legislative instrument.

Ultimately, the Tribunal affirmed the decision under review to refuse the nomination. The applicant's failure to provide the necessary updated information meant that the Tribunal could not be satisfied that all the requirements of regulation 5.19(4) were met.