RDS Worldwide Pty Ltd (Migration)

This matter concerned an application by RDS Worldwide Pty Ltd for approval of a nomination under the Direct Entry Nomination stream. The core dispute revolved around whether the applicant had demonstrated the capacity to employ the nominated individual, Mr Amrinder Singh, as a Cook for at least two years on a full-time basis, with terms and conditions that did not expressly exclude the possibility of an extension. The decision was made by Member Mary Sheargold of the Tribunal.

The Tribunal was required to determine if the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the applicant's financial position and stated wage expenditure supported the likelihood of employing the nominee as proposed, considering the nominee's proposed salary in relation to the applicant's existing wage expenditure and overall financial performance.

The Tribunal's reasoning focused on the applicant's financial statements for the financial years ending 30 June 2015 and 30 June 2016. While noting significant growth in the business, the Tribunal found it unclear whether the total wage expenditure in the 2015-16 financial year included wages for the nominee or only the six existing employees. Crucially, the nominee's proposed base salary represented almost 50% of the total wage expenditure for the existing staff. In the absence of more recent financial information and given the proposed salary, the Tribunal concluded that it was unlikely the applicant had the capacity to employ the nominee as required by regulation 5.19(4)(d)(i).

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.