W.J JOHANESEN& D.K THAI (Migration)

This matter concerned an appeal by W.J. Johanesen and D.K. Thai against a decision to refuse a nomination for a Regional Sponsored Migration Scheme employer nomination under the Direct Entry stream. The applicants operated a restaurant and sought to nominate an employee for the position of restaurant manager. The Tribunal was required to determine whether the applicants met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the nominator was actively and lawfully operating a business in Australia, as required by regulation 5.19(4)(b), and whether the applicants had demonstrated the financial capacity to employ the nominee full-time for at least two years, as required by regulation 5.19(4)(d). The Tribunal had invited the applicants to provide specific financial and business documentation, including tax returns, business activity statements, and financial statements, as well as a job description and current employment contract.

The Tribunal found that the applicants had failed to provide the requested information in response to its invitation. Crucially, the applicants' Australian Business Number (ABN) had been cancelled, and the business was not registered for Goods and Services Tax (GST). In the absence of the requested documentation, the Tribunal concluded that it did not have sufficient evidence to be satisfied that the business was actively and lawfully operating, nor that the applicants possessed the financial capacity to meet the employment requirements for the nominated position. Consequently, the Tribunal affirmed the decision under review to refuse the nomination.