1513283 (Migration)

This matter concerned an application to the Administrative Appeals Tribunal (AAT) concerning the refusal of a nomination under the Direct Entry nomination stream. The applicant sought to have the decision to refuse the nomination set aside.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for the approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal considered whether there was any adverse information known to Immigration about the nominator or a person associated with the nominator, as required by regulation 5.19(4)(f), and whether the applicant was financially viable.

The Tribunal considered evidence regarding the voluntary winding up of a related company, Pastacup Australia Pty Ltd, and the current ASIC status of "strike off action in progress" for that entity. While the nominator’s director explained this was due to the passing of a former director and the widow’s unwillingness to remain involved, the Tribunal also examined the applicant's profit and loss statement. This statement revealed a net loss of $37,024 for the period July 2014 to February 2015, with expenses exceeding income. Despite the director’s assertion of the group’s overall strong financial position, the Tribunal was satisfied that the applicant, as a discrete entity, was operating at a loss. The Tribunal noted, however, that an unfair dismissal application brought by a former employee of another related company had been dismissed.

Ultimately, the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19(4). As the applicant had not sought to satisfy the criteria for the Temporary Residence Transition Nomination stream, the Tribunal affirmed the decision under review to refuse the nomination.