The Darbar Indian Nepalese Restaurant (Fremantle) Pty Ltd (Migration)

This matter concerned an application by The Darbar Indian Nepalese Restaurant (Fremantle) Pty Ltd for approval of a nominated position under the Regional Sponsored Migration Direct Entry stream. The applicant sought to nominate Mr Sharma Dahl for the occupation of Cook (ANZSCO 351411) with a proposed salary of $54,000 per annum. The delegate refused the application, finding that the applicant had not provided sufficient evidence of its financial capacity to employ the nominee full-time for at least two years, as required by regulation 5.19(4)(d)(i) of the Migration Regulations 1994. The applicant subsequently sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had met all the requirements for the approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the applicant had demonstrated sufficient financial capacity to provide the nominated employee with at least two years of full-time employment, and if the provided documentation adequately supported this claim. The Tribunal also considered whether the applicant had provided sufficient evidence to satisfy the delegate and subsequently the Tribunal of the business's financial viability.

The Tribunal affirmed the delegate's decision to refuse the nomination. The Tribunal reasoned that the applicant had failed to provide substantial evidence demonstrating its financial viability to meet the requirement of paying the nominee's full-time salary of $54,000 per annum for at least two years. While the applicant provided various documents, including Business Activity Statements and payroll reports, the delegate noted the absence of balance sheets, profit and loss statements, or a letter from an accountant attesting to the business's financial position and capacity. The Tribunal concluded that, based on the information before it, the applicant had not satisfied the criteria under regulation 5.19(4)(d)(i).