JCL HOLDINGS PTY LTD (Migration)

This matter concerned an application by JCL Holdings Pty Ltd for approval of a nomination under the Direct Entry stream for the occupation of Retail Buyer. The applicant sought to nominate Ms Susan Yi Xu, a PNG citizen born in China, for a position with a base annual salary of $54,000. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether JCL Holdings Pty Ltd had demonstrated it had the financial capacity to employ the nominee for at least two years, as required by regulation 5.19(4)(d)(i). This involved assessing the financial health of the business, particularly in light of a significant drop in profits and the impact of events such as state and international border closures due to COVID-19. The Tribunal also considered the terms and conditions of employment and whether they excluded the possibility of an extension, as stipulated by regulation 5.19(4)(d)(ii).

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not satisfied the requirements of regulation 5.19(4). Evidence presented, including company tax returns and Business Activity Statements, indicated a substantial decline in the business's financial performance, with a loss before income tax of ($22,767.23) for the year ending 30 June 2018 and a profit of only $3,679.20 for the year ending 30 June 2019. The Tribunal noted that at the time of the nomination application in October 2017, the business employed four full-time staff, but this had reduced to two full-time staff by the time of the hearing, partly due to the impact of COVID-19. Given these financial indicators and the reduction in staffing, the Tribunal was not satisfied that the applicant had demonstrated a genuine need for the nominated position or the financial capacity to employ the nominee for the required period. The Tribunal also noted that the applicant had not sought to satisfy the criteria under the Temporary Residence Transition Nomination stream, as per regulation 5.19(3).