Anna W L Chan & Andrew B L Shi (Migration)

This matter concerned an appeal by Anna W L Chan and Andrew B L Shi against a decision to refuse the approval of a nominated position under the Direct Entry stream of the Employer Nomination Scheme (Subclass 186) or Regional Sponsored Migration Scheme (Subclass 187) visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the nominated position met the requirements of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominator, Anna W L Chan, was actively and lawfully operating a business in Australia at the time of the decision, as required by regulation 5.19(9)(a) of the Migration Regulations 1994. This requirement is a prerequisite for the approval of a nomination under the Direct Entry stream. The Tribunal also considered whether the nominator met the general requirements for approval under regulation 5.19(4).

The Tribunal found that it had no contemporary information to satisfy itself that the nominator was actively and lawfully operating a business. Despite being invited under section 359(2) of the Migration Act 1958 to provide information demonstrating compliance, the applicant failed to respond. Furthermore, publicly available Australian Business Register records indicated that the nominator's Australian Business Number (ABN) had been cancelled. In the absence of any information from the applicant and given the cancelled ABN, the Tribunal was not satisfied that regulation 5.19(9)(a) was met. Consequently, the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19, leading to the refusal of the nomination under regulation 5.19(3)(b).

The Tribunal affirmed the decision under review to refuse the nomination.