The Trustee for The Shaikh Trust (Migration)

The Administrative Appeals Tribunal considered an application by The Trustee for The Shaikh Trust (the applicant) for approval of a nominated position under the Direct Entry stream. The dispute concerned whether the applicant met the financial capacity requirements to employ a nominee full-time for at least two years, as stipulated by migration regulations.

The primary legal issue before the Tribunal was to determine if the applicant had demonstrated a genuine need for the nominated position and possessed the financial capacity to employ the nominee on a full-time basis for the required duration. This involved assessing the applicant's financial statements and business operations to ascertain whether employing the nominee full-time would result in a net profit or a net loss.

The Tribunal reasoned that the applicant's financial evidence indicated a net loss if the nominee were employed full-time, despite the nominee currently working part-time and holding full work rights. The Tribunal also noted the nominee's long commute as a factor suggesting a genuine need for the position. Applying the requirements of regulation 5.19(4) of the Migration Regulations 1994, the Tribunal found that the applicant had not satisfied the financial capacity criterion.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.