WINTER STRAWBERRIES CO PTY LTD (Migration)

This matter concerned an appeal by Winter Strawberries Co Pty Ltd against the refusal of its nomination application under the Temporary Residence Transition stream of the subclass 457 visa program. The core of the dispute revolved around whether the applicant, as the nominator, had met all the regulatory requirements for the nomination to be approved, particularly concerning the nominee's future employment and the nominator's financial capacity and training commitments. The decision was made by De-Anne Kelly, a Member of the Tribunal.

The legal issues before the Tribunal were whether the nominator had satisfied the requirements of regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nominator had demonstrated the financial capacity to employ the nominee on a full-time basis for at least two years in the nominated position, and whether the nominator had fulfilled its training obligations. The Tribunal also considered the evidence presented regarding the genuineness of the employment position and the nominator's overall compliance with relevant migration laws.

The Tribunal affirmed the decision to refuse the nomination. Its reasoning was primarily based on the lack of sufficient evidence to demonstrate the nominator's financial capacity to pay the nominated full-time salary of $181,000 per annum for the position of Sales and Marketing Manager for the required two-year period. While various financial documents and business activity statements were submitted, the Tribunal found them insufficient to establish this crucial element. Furthermore, the Tribunal noted that the nominator had failed to maintain its commitment to ongoing training as required under the regulations. Consequently, the Tribunal concluded that the nominator had not met all the mandatory criteria for approval of the nomination.