MVK TECHNOLOGIES PTY LTD (Migration)

This matter concerned an application by MVK Technologies Pty Ltd for approval of a nomination for a Software Engineer position under the Direct Entry stream. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the general requirements for approval of a nomination under regulation 5.19(4) and the specific requirements for the Direct Entry stream under regulation 5.19(9) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominator, MVK Technologies Pty Ltd, had demonstrated it had the financial capacity to employ the nominated person as a Software Engineer for at least two years and to pay them at least the annual market salary rate for that occupation each year, as required by regulation 5.19(9)(g). This also involved considering whether the applicant had provided sufficient contemporary information to satisfy the Tribunal of this capacity, particularly in light of the Tribunal's invitation to provide further information under subsection 359(2) of the Migration Act 1958.

The Tribunal reasoned that the existing financial information provided by the applicant was over three years old and therefore could not be given any weight. Crucially, the applicant failed to respond to the Tribunal's invitation to provide updated information demonstrating the business's financial capacity. Without contemporary evidence, the Tribunal was not satisfied that the nominator had the capacity to employ the identified person for at least two years at the market rate. Consequently, the Tribunal found that regulation 5.19(9)(g) was not met, which in turn meant that regulation 5.19(4)(f) was also not met.

As the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19, it was required under regulation 5.19(3)(b) to refuse the nomination. Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.