Huang (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant sought review of a decision that had not approved their nomination. The core dispute revolved around whether the nominator possessed the financial capacity to employ the applicant in the nominated position of importer or exporter for at least the next two years.

The Tribunal was required to determine if the nominator had demonstrated sufficient financial capacity to meet the salary requirements for the nominated role. This involved assessing the nominator's financial statements, tax returns, and Business Activity Statements, and comparing them with the declared payroll expenditure and the applicant's salary. The Tribunal also had to consider the evidence presented by the applicant, including updated financial documents, company structure, and details of the nominated position and employment agreement.

The Tribunal reasoned that while the delegate had concerns regarding the nominator's financial capacity, evidenced by net liabilities and past tax losses, the applicant had provided substantial additional material. This included tax returns and BAS statements covering a later period, which suggested a more positive financial position. The Tribunal also noted the applicant's role as an importer, the company's growth, and the provision of a detailed job description and employment agreement. Given the new evidence, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. It directed that the first named applicant met the criteria for a Subclass 186 (Employer Nomination Scheme) visa, specifically referencing clause 186.223 of Schedule 2 to the Regulations. The Tribunal also found that as the primary applicant met the visa criteria, the secondary applicant also met the criteria.