SIXTH SENSE FOOD PTY LTD (Migration)

This matter concerned an appeal by SIXTH SENSE FOOD PTY LTD (the applicant) against a decision to refuse the approval of a nominated position under the Temporary Residence Transition nomination stream. The applicant sought to nominate a Café or Restaurant Manager. The primary dispute revolved around the applicant's financial capacity to maintain the nominated employment and the reliability of its business records.

The Tribunal was required to determine whether the applicant had demonstrated it had the financial capacity to employ the nominee and other staff, and whether the business records provided were sufficient to satisfy the requirements of Regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal needed to assess if the applicant's financial statements, payroll information, and other supporting documents adequately proved its ability to pay the proposed salary and meet its obligations as a sponsor.

The Tribunal found that the applicant's financial records were unreliable and insufficient. While the applicant stated a proposed salary of $58,000 per annum for the nominee and provided an accountant's letter asserting business viability, discrepancies were noted. Departmental records indicated the applicant sponsored multiple 457 visa holders with salaries at or above the Temporary Skilled Migration Income Threshold (TSMIT), which, when aggregated, exceeded the total payroll expenditure stated on the nomination application and in the accountant's letter. Furthermore, the applicant failed to provide comprehensive supporting documentation for the salaries of other staff, such as payroll summaries and ATO-lodged PAYG payment summaries, and the most recent financial information was not readily available. The Tribunal was not satisfied that the applicant met the requirements of Regulation 5.19(3) due to these deficiencies.

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