T.K.O Engineering Australia PTY LTD (Migration)

This matter concerned an application by T.K.O Engineering Australia PTY LTD for approval of a nomination for a visa under the Direct Entry stream. The dispute centred on whether the nominator had demonstrated a genuine need for the identified person to be employed in the nominated position of Contract Administrator. The decision was made by the Tribunal, presided over by Member Peter Emmerton.

The primary legal issue before the Tribunal was whether the nominator satisfied the requirements of regulation 5.19(4) and, specifically, the stream-specific requirements of regulation 5.19(9) of the Migration Regulations 1994. This included determining whether there was a genuine need for the identified person to be employed in the position, as stipulated by regulations 5.19(9)(c) and (d).

The Tribunal's reasoning focused on the financial capacity of the nominator and the proposed remuneration for the identified person. It was noted that the nominator's total revenue over the last four financial years was less than AUD $200,000, averaging approximately AUD $48,255 per year. The proposed annual remuneration package for the visa applicant was AUD $80,000 plus superannuation, which was substantially more than the average annual revenue. The Tribunal found that this proposed salary, which the company had acknowledged it could not currently pay, represented approximately double the average total revenue of the business over the preceding four financial years, leading to the conclusion that there was not a genuine need for the employment.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination, finding that the nominator had not met the requirements of regulation 5.19.