T LUU & M.L LY (Migration)

The Administrative Appeals Tribunal (AAT) considered the application of T LUU and M.L LY concerning the approval of a nominated position for migration purposes. The applicants sought review of a decision that refused to approve a nominated position as a Café or Restaurant Manager under the Direct Entry stream of the Employer Nomination scheme. The core of the dispute revolved around the employer's financial capacity to meet the terms of employment offered to the prospective visa holders.

The Tribunal was required to determine whether the employer had demonstrated sufficient financial capacity to maintain the nominated employment for the duration specified in the contract of employment. This involved assessing the adequacy of the financial evidence provided, including financial statements, PAYG reports, and business activity statements, to establish the employer's ability to meet its obligations.

In its reasoning, the Tribunal applied the principles governing the assessment of an employer's financial capacity under the relevant migration regulations. It found that the evidence presented by the employer was insufficient to satisfy the delegate that the business had the financial capacity to employ the nominated persons for the period stipulated. The Tribunal concluded that the financial statements, in particular, did not provide a clear and reliable picture of the business's financial health and its ability to sustain the proposed employment.

Consequently, the Tribunal set aside the original decision and remitted the matter to the delegate for reconsideration.