ANTONIOS SOLUTIONS PTY LTD (Migration)

This matter concerned an appeal by Antonios Solutions Pty Ltd (the nominator) against a decision to refuse the approval of a nominated position under the Direct Entry Nomination stream of the Migration Regulations 1994. The Tribunal was required to determine whether the nominator met the requirements of regulation 5.19(4), specifically whether the nominator was actively and lawfully operating a business in Australia at the time of the decision, and whether there was a genuine need for the nominator to employ a paid employee in the nominated position.

The Tribunal considered evidence that the nominator, Antonios Solutions Pty Ltd, which operates a painting services business, had only one employee, its director and sole shareholder, Mr Canto. Mr Canto had been in Brazil since December 2016, and during his absence, the business had ceased operations and undertaken no work. The Tribunal noted that while the company structure allowed for the director to nominate himself, the lack of active business operations and Mr Canto's absence from Australia raised concerns about the genuineness of the vacancy and the need for an additional employee. The Tribunal applied the principles that all requirements of regulation 5.19(4) must be met and that the assessment of these requirements is based on the evidence before the Tribunal at the time of its decision.

The Tribunal found that the evidence did not satisfy the requirement that the nominator was actively operating a business in Australia. Furthermore, it concluded that there was no demonstrable need for the business to employ a paid employee, as the business was not currently engaged in any work and the need for an employee would only arise upon Mr Canto's return and the recommencement of operations. Consequently, the Tribunal affirmed the decision under review to refuse the nomination.