P Banjade Sapkota and S Sapkota (Migration)

This matter concerned an application for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant, P Banjade Sapkota, sought to nominate S Sapkota for a position as a Pastry Cook. The core of the dispute revolved around whether the nominator possessed the financial capacity to pay the proposed nominee and whether sufficient evidence had been provided to demonstrate this. The decision was made by the Federal Circuit Court.

The court was required to determine if the applicant met all the requirements for the approval of the nominated position as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the court needed to assess whether the nominator had provided adequate evidence of their financial capacity to employ the nominee and whether the nominated position itself met the stipulated criteria, including the terms and conditions of employment.

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not satisfied the requirements of regulation 5.19(4). While acknowledging the existence of a contract of employment for the position of Pastry Cook with a salary of $54,000 per annum, the Tribunal noted a lack of additional documentary evidence to support the case beyond what was available at the time of the original delegate's decision. The Tribunal concluded that the applicant had not provided sufficient evidence to demonstrate compliance with the relevant regulations, leading to the affirmation of the refusal.