A.J BROWN & FRONTRUNNER CONSOLIDATED HOLDINGS PTY LTD & MARLAS PTY. LTD. T/A UNIQUE LUNCH STOP (Migration)

This matter concerned a review of a decision to refuse the approval of a nominated position under the Direct Entry Nomination stream of the Migration Regulations 1994. The applicant, a partnership comprising A.J. Brown & Frontrunner Consolidated Holdings Pty Ltd & Marlas Pty Ltd trading as Unique Lunch Stop, sought approval for a Retail Manager position. The core dispute revolved around whether the applicant, as the nominator, was actively and lawfully operating a business in Australia at the time of the application.

The legal issue before the Tribunal was whether the applicant met the requirements of regulation 5.19(4)(b) of the Migration Regulations 1994, specifically that the nominator was actively and lawfully operating a business in Australia. This required the Tribunal to consider the operational status of the partnership and its legal entity in light of changes in its business structure and the cancellation of its Australian Business Number (ABN).

The Tribunal considered evidence that the partnership had ceased to operate as such from October 2016, with its business operations subsequently being conducted solely by Frontrunner Consolidated Holdings Pty Ltd, a different legal entity. This was supported by historical ABN Lookup details showing the applicant partnership's ABN was cancelled from 30 September 2016. The Tribunal accepted this evidence, finding that the applicant partnership was no longer actively and lawfully operating a business in Australia, and therefore failed to meet the criteria under regulation 5.19(4)(b)(i).

Consequently, 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 under the Temporary Residence Transition Nomination stream (regulation 5.19(3)), the nomination could not be approved. The Tribunal affirmed the decision under review to refuse the nomination.