MASA ENTERTAINMENT HOLDING PTY LTD (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) regarding the refusal of a nomination for the Temporary Residence Transition stream. The applicant, MASA ENTERTAINMENT HOLDING PTY LTD, sought approval for a nomination for the position of Cook. The core of the dispute revolved around whether the company had demonstrated its financial capacity to employ the nominee, Mr Zheng, on a full-time basis for at least two years, as required by the Migration Regulations 1994.

The legal issue before the Tribunal was whether the nominator, MASA ENTERTAINMENT HOLDING PTY LTD, met the requirements of regulation 5.19(3) of the Migration Regulations 1994 for the approval of a nomination under the Temporary Residence Transition stream. Specifically, the Tribunal had to determine if the company had satisfied the criterion in regulation 5.19(3)(d)(i), which mandates that the nominee will be employed on a full-time basis for at least two years, and that the terms of employment do not expressly preclude an extension.

The Tribunal affirmed the decision to refuse the nomination. It reasoned that regulation 5.19(3)(d)(i) requires the nominator to demonstrate that the nominee will be employed full-time for at least two years on terms that do not expressly preclude an extension. The delegate's original decision had noted the company's failure to provide sufficient evidence of its financial capacity to pay the nominee's salary for the required period. Despite being invited by the Tribunal under section 359(2) of the Act to provide further information to demonstrate compliance with regulation 5.19(3)(d)(i), the company failed to submit any requested documentation or seek an extension of time. In the absence of current evidence regarding the company's financial performance, the Tribunal was not satisfied that the company could demonstrate it would employ Mr Zheng as a Cook full-time for at least two years. Consequently, the Tribunal concluded that the company did not meet the requirements of regulation 5.19(3)(d)(i) and, therefore, did not meet the overall requirements of regulation 5.19(3).

The Tribunal affirmed the decision under review to refuse the nomination.