Boutique Venues Group Pty Ltd ATF Boutique Venues Group Unit Trust (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a nomination application under the Direct Entry nomination stream. The applicant, Boutique Venues Group Pty Ltd ATF Boutique Venues Group Unit Trust, sought approval for a nominated position. The core dispute revolved around whether the nominator met the legislative requirements for actively and lawfully operating a business in Australia, as stipulated by regulation 5.19(4)(b) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had provided sufficient evidence to satisfy the requirement that the nominator was actively and lawfully operating a business in Australia. Specifically, the Tribunal considered whether the applicant had demonstrated this through appropriate financial documentation and evidence of lawful operation, including the proper constitution of the trust and registration of the business name. The Tribunal also considered the Department's policy regarding the assessment of active business operation, acknowledging that while not bound by it, the policy provided relevant guidance.

In its reasoning, the Tribunal noted that businesses operating for more than 12 months should typically provide financial statements and tax returns. The applicant had only submitted a draft profit and loss statement for a six-month period and no contemporary financial statements or tax returns. Furthermore, despite an invitation to provide evidence such as ASIC extracts and the trust deed, this information was not supplied to the Tribunal. Consequently, the Tribunal found that the applicant had not established that the business was actively and lawfully operating, nor that the trust was properly constituted. The Tribunal affirmed the delegate's decision to refuse the nomination.