Zohha Holdings Pty Ltd as The Trustee for Zohha Family Trust (Migration)

This matter concerned an application by Zohha Holdings Pty Ltd as the Trustee for Zohha Family Trust (the nominator) for approval of a nominated position for a visa applicant, Mr Hassan Hayat. The nominated position was Retail Manager. The dispute arose when the decision to refuse the nomination was reviewed by the Tribunal. The Tribunal, presided over by Mr S Norman, considered whether the nominator met the requirements for approval of the nomination under the Direct Entry nomination stream as set out in regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominator had satisfied all the mandatory requirements for the approval of the nominated position under the Direct Entry stream. Specifically, the Tribunal had to determine if there was a genuine need for a paid employee in the nominated position, if the business was actively and lawfully operating, and if the proposed employment met the specified criteria regarding duration and terms and conditions. The Tribunal also considered the financial capacity of the business and whether the salary for the nominated position would significantly impact profitability.

The Tribunal's reasoning focused on the requirement that the nominator must identify a need for a paid employee to work in the position under their direct control. It was found that the work for the Retail Manager position had effectively been undertaken by the visa applicant on a part-time basis. Furthermore, the Tribunal considered the director's capacity to engage in business and the financial capacity of the nominator. The proposed salary for the new position was assessed as likely to cause a substantial drop in the business's profitability, which weighed against the genuine need for the role. The Tribunal concluded that the applicant had not met the requirements of regulation 5.19(4) and, as such, the nomination could not be approved.

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