SHEESHMAHAL INDIAN RESTAURANT PTY LTD (Migration)

This matter concerned an application by Sheeshmahal Indian Restaurant Pty Ltd for approval to nominate a cook under the Temporary Residence Transition stream. The applicant sought to nominate an individual for a position with a proposed salary of $53,000 per annum. The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant demonstrated sufficient financial capacity to operate its business and to employ the nominated individual on a full-time basis for at least two years, as required by regulation 5.19(3)(d)(i). This also involved considering whether the applicant had provided sufficient evidence of its financial position to satisfy the Tribunal of its capacity to meet this requirement.

The Tribunal found that the applicant had not met the requirements of regulation 5.19(3). Evidence presented, including profit and loss statements for the years ended 30 June 2015 and 2014, indicated substantial operating losses and net liabilities. Despite being invited to provide further financial information, the applicant declined, with its representative admitting the business had not been profitable. The Tribunal concluded that the applicant's financial position was precarious and that there was insufficient evidence to satisfy it that the nominated employee would be employed for at least two years. Consequently, the Tribunal affirmed the decision to refuse the nomination.