SUGLANI BROTHER PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by SUGLANI BROTHER PTY LTD for approval of a nomination of a position under the Direct Entry nomination stream. The dispute concerned whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nominated position, which was described as a Retail Manager. The Tribunal, presided over by Member Amanda Mendes Da Costa, was required to determine if all the stipulated criteria for the nomination were satisfied.

The primary legal issue before the Tribunal was whether the nominated position of Retail Manager was genuinely required and whether the duties performed by the nominee aligned with the requirements of the Direct Entry stream. Specifically, the Tribunal had to assess if the nominee's role was closer to that of a supervisor than a manager, and critically, whether the applicant company possessed the financial capacity to employ the nominee. This involved examining documentary and oral evidence presented by the company's director and the nominee, particularly in light of the company's financial performance, which had shown losses in the preceding three years due to factors including COVID-19 restrictions, franchise fees, and rent.

The Tribunal affirmed the decision under review, finding that the applicant had not satisfied the requirements of regulation 5.19. While the director stated the nominee had been employed full-time since 2018 and was responsible for day-to-day staff supervision, payroll, tax matters, and financial management, the Tribunal was not satisfied that the applicant met the criteria for approval. The decision was influenced by the company's financial position, including recent losses and the director's decision not to renew the franchise agreement and lease due to high rental costs, alongside plans for a new business in different premises. The Tribunal concluded that the applicant had not demonstrated a genuine need for the nominated position or the financial capacity to sustain the employment as required by the regulations.