K Dhother & S.S Dhother (Migration)

This matter concerned an application for approval of a nomination for a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The applicants, K Dhother and S.S Dhother, sought approval for the nomination of a Banana Inspector. The primary dispute revolved around whether the applicants demonstrated sufficient financial capacity to employ the nominee for a period of two years, particularly in light of financial losses incurred in the two years preceding the application. The case was heard by Terrence Baxter.

The court was required to determine whether the applicants had met all the requirements for the approval of the nomination under Regulation 5.19(4) of the Migration Regulations 1994 (Cth). Specifically, the court needed to assess the applicants' financial capacity to employ the nominee for at least two years, as stipulated by Regulation 5.19(4)(d)(i), and whether there was a genuine need for the nominator to employ the nominee as a paid employee in the nominated position, as required by Regulation 5.19(4)(h)(ii)(B). The court also considered other regulatory requirements, including the application being in the approved form, the absence of adverse information, and satisfactory compliance with workplace relations laws.

The court reasoned that while earlier financial statements submitted by the applicants indicated losses, more recent financial documents, including trading profits shown in financial statements for the 2020, 2021, and 2022 financial years, demonstrated a sufficient financial capacity to meet the employment requirement. The court also found that the applicants had satisfied the requirement for a genuine need for the nominee, supported by evidence of labour market testing and the ongoing employment of the nominee since 2018. The court concluded that all relevant requirements of Regulation 5.19(4) had been met.

The court set aside the decision under review and substituted a decision approving the nomination.