THE TRUSTEE FOR ORBILO (Migration)

This matter concerned an application for approval of a nomination for a Subclass 186 Employer Nomination Scheme visa in the Direct Entry stream. The applicant sought to nominate Mr Nirajkumar Bhanuprasad PATEL for the position of Software Engineer. The dispute arose because the Tribunal was not satisfied that the nominator met the requirements for approval of the nomination.

The legal issues before the Tribunal were whether the nominator was actively and lawfully operating a business in Australia, as required by regulation 5.19(9)(a) of the Migration Regulations 1994, and whether the nominator had the financial capacity to employ the identified person for at least two years and pay them the annual market salary rate, as required by regulation 5.19(9)(g). These requirements are essential for the approval of a nomination under the Direct Entry stream.

The Tribunal found that the nominator had failed to provide updated financial information, such as tax returns and BAS statements, when requested by the Tribunal. The evidence before the Tribunal consisted of documents that were several years out of date, leading to a lack of satisfaction that the nominator was actively operating a business or had the financial capacity to employ the nominee for the required period. Consequently, the Tribunal was not satisfied that the requirements of regulation 5.19(9)(a) and (g) were met.

The Tribunal affirmed the decision under review to refuse the nomination.