TM Cafe Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by TM Cafe Pty Ltd for approval of a nomination of a position under the Direct Entry nomination stream. The dispute concerned whether the applicant met the requirements for the nomination, specifically concerning the proposed employment of a nominee.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of regulation 5.19(4) of the Migration Regulations 1994, particularly regulation 5.19(4)(d), which mandates that the nominee will be employed full-time for at least two years. The Tribunal also considered whether the applicant had provided sufficient contemporary information to demonstrate that the business was in a financial position to meet this requirement.

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not demonstrated that it met the requirements of regulation 5.19(4)(d). The Tribunal noted that the business was newly established and trading at a loss when the nomination was initially refused. Despite being provided with an opportunity to submit updated information, including financial statements and business activity statements, the applicant failed to provide sufficient evidence to establish that the business was currently operating profitably or was in a financial position to employ the nominee full-time for two years. The Tribunal concluded that it was not possible to determine from the information provided whether the applicant was continuing to trade or was financially capable of meeting the employment obligations.

Consequently, the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19(4) and therefore affirmed the decision under review to refuse the nomination.