The Trustee For Brar Family Trust (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by The Trustee For Brar Family Trust (Migration) concerning a refusal to approve a nomination for the Temporary Residence Transition stream of the subclass 482 visa. The core of the dispute revolved around the applicant's satisfaction of the requirements for sponsorship approval, specifically whether the business was actively and lawfully operating in Australia and possessed the financial capacity to employ the nominee full-time for at least two years on terms and conditions no less favourable than those offered to Australian citizens or permanent residents.

The Tribunal was tasked with determining whether the delegate's decision to refuse the nomination was the correct or preferable decision. This involved assessing whether the Brar Family Trust was genuinely and lawfully operating its business in Australia, and critically, whether it had the financial capacity to sustain the employment of the proposed nominee for the required duration. Furthermore, the Tribunal had to consider whether the proposed terms and conditions of employment met the legislative standard of being no less favourable than those provided to Australian employees in similar roles.

In its reasoning, the Tribunal analysed the evidence presented regarding the business's operations and financial standing. It applied the principles established in migration law concerning the assessment of a business's active and lawful operation and its financial capacity to meet its employment obligations. The Tribunal found that the evidence did not sufficiently demonstrate that the business had the requisite financial capacity to employ the nominee for the full two-year period. Consequently, the Tribunal set aside the delegate's decision and remitted the matter to the Department of Home Affairs for reconsideration.