Federal Court. Could r 5.19(3)(d)(i) of the Migration Regulations 1994 (Cth) only be satisfied if the nominator would not operate at a loss as a result of employing the nominee for 2 years? Was the salary of another nominee a prohibited consideration under r 5.19(3)(d)(i)? If an employment contract makes no mention on whether the terms and conditions of the person’s employment exclude the possibility of extending the period of employment, does that amount to a failure to satisfy r 5.19(3)(d)(ii)?
Regulation 5.19(3)(d) of the Migration Regulations 1994 (Cth) provided as follows:
(3) The Minister must, in writing, approve a nomination if:
…
(d) for a person to whom subparagraph (c)(i) applies:
(i) the person will be employed on a full-time basis in the position for at least 2 years; and
(ii) the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment …
The Federal Court (FCA) said as follows:
65 ... the contract is silent on whether the nominee will be employed on a full-time basis for at least two years. The proposition which [the Tribunal] said to flow from that is that the nominee does not have a written agreement to enforce legal rights of full-time employment for at least two years ...
66 The contract in this case is of indefinite duration, but there are express provisions in the contract for termination by either party at any time on notice with the period of notice fixed by reference to the period of the contract prior to notice being given...
Some of the questions to the FCA were as follows:
Question 1: Did r 5.19(3)(d)(i) require consideration of a nominator's circumstances and an assessment whether it was likely that the nominator would employ the nominee on a full-time basis for at least two years at the agreed annual salary level?
Question 2: Could the test in r 5.19(3)(d)(i) "only be satisfied if a fixed level of profit ... was maintained"? In other words, could the test in r 5.19(3)(d)(i) only be satisfied if the nominator would not operate at a loss as a result of employing the nominee for 2 years?
Question 3: Was the salary of another nominee a prohibited consideration under r 5.19(3)(d)(i)?
Question 4: If an employment contract makes no mention on whether the terms and conditions of the person’s employment exclude the possibility of extending the period of employment, does that amount to a failure to satisfy r 5.19(3)(d)(ii)?
Question 5: Did the Tribunal err "in its understanding of the contracts in that the contracts did not need to specify a period of employment when the nominees were employed on an ongoing basis"?
The FCA answered those questions as follows: