Shanti Pathak Pty Ltd as Trustee for the Maa Durga Trust (Migration)

This matter concerned an application by Shanti Pathak Pty Ltd as Trustee for the Maa Durga Trust for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant sought to nominate a position for a Café or Restaurant Manager. The core dispute revolved around whether the applicant had demonstrated sufficient financial capacity to maintain the nominated employee for the term of employment and whether the nominated position itself met the regulatory requirements.

The legal issues before the Tribunal were whether the applicant met the requirements for approval of the nomination under Regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the application was compliant, including whether it identified a need for the nominator to employ a paid employee to work in the position under their direct control. The Tribunal also considered the broader requirements of Regulation 5.19(4), including the nominator's operational status, the terms and conditions of employment, and the absence of adverse information.

The Tribunal reasoned that while Regulation 5.19(4)(a)(ii) required the identification of a need for a paid employee, its precise scope was uncertain. However, the Tribunal found that the applicant had provided substantial evidence demonstrating a genuine need for the nominated position, including financial statements, tax returns, job advertisements, recruitment summaries, and evidence of business operations. The Tribunal also noted that further evidence, such as recent Australian Taxation Office activity statements, tax returns for the 2019 and 2020 financial years, and payroll documents, had been provided after the hearing, which further supported the applicant's claims. The Tribunal concluded that the applicant had met the requirements for approval of the nomination.

The Tribunal set aside the decision under review and substituted a decision approving the nomination.