AUSBD PTY LTD (Migration)

This matter concerned an application by AUSBD Pty Ltd for the approval of a nominated position under the Temporary Residence Transition stream. The dispute arose because the Administrative Appeals Tribunal (AAT) was not satisfied that the nominator, AUSBD Pty Ltd, met the regulatory requirements for approving the nomination, specifically the requirement that the nominator be actively and lawfully operating a business in Australia. The decision was made by Senior Member Michael Cooke.

The primary legal issue before the Tribunal was whether AUSBD Pty Ltd, as the nominator, satisfied the criteria stipulated in regulation 5.19(3)(b) of the Migration Regulations 1994. This regulation requires the nominator to be, or have been, the relevant standard business sponsor who is actively and lawfully operating a business in Australia, and to not have met certain criteria relating to overseas business operations in their most recent sponsorship approval. The Tribunal specifically had to determine if the nominator was actively and lawfully operating its business, the 'Spice of Life' restaurant, in Australia.

The Tribunal's reasoning focused on the evidence presented regarding the operational status of the restaurant. It was noted that the business had closed in December 2017 due to a fire and staff injury, briefly reopened, and then closed again in May 2018 for renovations, remaining closed thereafter. Despite submissions and photographs indicating renovation plans, the Tribunal found the situation had been ongoing since 2018 and that crucial information regarding the business's current financial and organisational status had not been provided. The Tribunal also considered that the nominated persons had to seek alternative employment or financial support due to the closure. Consequently, the Tribunal was not satisfied that the nominator was actively and lawfully operating a business in Australia, a failure to meet regulation 5.19(3)(b)(ii).

As a result of the failure to satisfy this essential requirement, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal concluded that the applicant had not met the necessary criteria under regulation 5.19(3) for the nomination to be approved.