P BANJADE SAPKOTA AND S SAPKOTA (Migration)

This matter concerned an appeal by P Banjade Sapkota and S Sapkota against a decision to refuse the approval of a nominated position under the Direct Entry Nomination stream. The core of the dispute revolved around whether the applicant's business had the financial capacity to employ the nominated individual, Ms Paneru, as a full-time pastry cook for at least two years, as required by regulation 5.19(4)(d)(i) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had satisfied all the requirements for the approval of the nomination, specifically focusing on the financial viability of the business and the terms of employment. This included assessing whether the nominee would be employed full-time for at least two years and whether the business could demonstrate the financial capacity to sustain such employment.

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had failed to provide sufficient evidence of the business's financial viability. While the applicant asserted the capacity to employ the nominee full-time for two years, the provided financial documentation was inadequate. Profit and loss statements and balance sheets extended only to the 2015 financial year, and Business Activity Statements for 2016 and 2017 did not offer a complete annual financial picture. Furthermore, an undated letter from the applicant's accountant, which relied on projections, was given no weight in the absence of actual financial results. The Tribunal also noted that the business had experienced a period of closure in late 2015 due to the termination of its lease, and a new lease agreement was not produced. Consequently, the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19(4).