Ausbase Investments Pty Ltd (Migration)

The Administrative Appeals Tribunal considered an application by Ausbase Investments Pty Ltd for approval of a nomination for a Motor Mechanic position under the Direct Entry nomination stream. The dispute arose when the Department of Immigration found another business operating at the nominated business location, and the applicant failed to provide updated information to satisfy the Tribunal that the nominated business was actively and lawfully operating and that there was a genuine need for the nominated position.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had demonstrated that the nominator was actively and lawfully operating a business in Australia and that there was a need for the nominator to employ a paid employee to work in the nominated position under their direct control.

The Tribunal reasoned that for a nomination to be approved, all the requirements of regulation 5.19(4) must be met. Despite an invitation to provide updated information, the applicant failed to do so, stating only that they were unable to provide the requested details. The Tribunal noted that it was not required to delay its decision indefinitely and, in accordance with section 359C of the Migration Act 1958, proceeded to make a decision based on the available evidence. The Tribunal found that the evidence provided was scant and did not establish the active and lawful operation of the business or the need for the nominated position, thus failing to meet the requirements of regulation 5.19(4)(a) and (b).

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