AICA Energy Australia Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered a review of a decision to refuse the nomination of a position for a visa. The applicant, AICA Energy Australia Pty Ltd, sought approval of a nomination under the Temporary Residence Transition stream of the relevant visa subclass. The core of the dispute concerned whether the applicant met the requirements of regulation 5.19 of the Migration Regulations 1994, specifically concerning the status of the nominator.

The Tribunal was required to determine if the applicant satisfied the general requirements for nomination approval under reg 5.19(4) and the stream-specific requirements under reg 5.19(5). A key issue was whether the nominator was "actively and lawfully operating a business in Australia" as required by reg 5.19(5)(h). The Tribunal had invited the applicant to provide updated information to demonstrate this, but no response or further documentation was received.

The Tribunal reasoned that it could only assess the application based on the evidence before it, which consisted of documents several years out of date. Given the lack of current information and the applicant's failure to respond to the request for updated financial evidence such as tax returns and BAS statements, the Tribunal was not satisfied that the nominator was actively and lawfully operating a business. Consequently, the Tribunal found that regulation 5.19(5)(h) was not met, which in turn meant that regulation 5.19(4)(e) was also not met.

As the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19, it was obligated under regulation 5.19(3)(b) to refuse the nomination. Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.