M&SA Trading Pty Ltd (Migration)

The Administrative Appeals Tribunal (Cth) considered an application by M&SA Trading Pty Ltd for approval of a nomination for a Temporary Residence Transition stream visa. The dispute concerned whether the applicant, a restaurant operator, met the requirements to employ the nominee as a Café or Restaurant Manager, specifically regarding its financial capacity and the genuine need for the position.

The Tribunal was required to determine if M&SA Trading Pty Ltd had the financial capacity to employ the nominee for at least two years, if the tasks of the nominated position corresponded to the occupation of Café or Restaurant Manager, and if the business was actively and lawfully operating in Australia. Additionally, the Tribunal had to assess whether there was a genuine need for the employment and if the terms and conditions of employment offered to the nominee were no less favourable than those provided to Australian employees. A further issue was whether any adverse information known to the Department about the nominator or associated persons could reasonably be disregarded.

The Tribunal reasoned that the applicant had provided updated financial information, including ATO income statements for the nominee, which satisfied the financial capacity requirement. It found that the tasks of the position aligned with the nominated occupation and that the business was actively and lawfully operating. Regarding adverse information, the Tribunal noted allegations made in 2016 concerning the applicant receiving payments for sponsorship. However, it considered these allegations to be unsubstantiated, uninvestigated by the Department, and denied by Mr. Saini, the sole director. Given the age of the allegations and the lack of substantiation, the Tribunal concluded that it was reasonable to disregard this information.

The Tribunal found that the application complied with the relevant regulations, including those pertaining to the nomination requirements and the absence of adverse information that could not be disregarded. Consequently, the decision under review was set aside.