Trading at a loss fatal to rr 5.19(5)(n) or (9)(g)?

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:

The remainder of this article is only available to Case Law and Platinum subscribers.

Read our Terms & Conditions and upgrade below:

Monthly Subscriptions

Premium
Basic Content
Premium Content
-
-
$ 29 /month
Subscribe
Case Law
Basic Content
-
Case Law Content
-
$ 49 / month
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 9 / month
$ 69 / month
Subscribe

Annual Subscriptions

Premium
Basic Content
Premium Content
-
Save $ 49 / year
$ 299 / year
Subscribe
Case Law
Basic Content
-
Case Law Content
Save $ 89 / year
$ 499 / year
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 237 / year
$ 699 / year
Subscribe

 

Where GST applies, the above amounts are inclusive of GST.

Content Types

Basic Content includes basic news, some media articles and selected announcements.

Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.

Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.

Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.

If you already have a Case Law or Platinum subscription, click on 'Login' below.

Previous articleSection 25(1) of Citizenship Act: a discretion?
Next articleSection 36B of the Citizenship Act invalid?