Federal Court. For the purpose of the old version of r 5.19(3)(d)(i), now arguably reflected in rr 5.19(5)(n) and (9)(g) of the Migration Regulations 1994 (Cth), does the circumstance that a nominator "has either generated modest profits or indeed has traded at a loss in any year or years" of itself "give rise to a conclusion that the person (nominee) will not be employed on a full-time basis in the position for at least two years, [the nominator] having contended that it would so employ the nominee and having put material before the Tribunal to that effect"?
Regulation 5.19(3)(d)(i) of the Migration Regulations 1994 (Cth) previously provided: "the person will be employed on a full-time basis in the position for at least two years". The Federal Court (FCA) interpreted that provision as follows:
65 Although the Tribunal quotes the text of Reg 5.19(3)(d)(i), the conception in the mind of the decision-maker is not one of whether, in fact, the nominee will be employed on a full-time basis in the position for at least two years, but one whether the appellant will be “able” “financially” to employ “and pay” the nominee for at least two years in the position ...
Arguably, that conception is now encapsulated in rr 5.19(5)(n) and (9)(g), which provides: "the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year".
The FCA answered the above question as follows: