Brisbane Sindhi Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a decision to refuse the approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant, Brisbane Sindhi Pty Ltd, sought to have this refusal overturned.

The primary legal issue before the Tribunal was whether Brisbane Sindhi Pty Ltd met all the requirements stipulated in subregulation 5.19(4) of the Migration Regulations 1994 for the approval of a Direct Entry nomination. This included, but was not limited to, whether the nominator was actively and lawfully operating a business in Australia and directly operating that business.

The Tribunal affirmed the delegate's decision to refuse the nomination. In its reasoning, the Tribunal noted that for a nomination to be approved, all the requirements of regulation 5.19(4) must be satisfied. While the Tribunal is not bound by departmental policy, it considered the policy's criteria for assessing whether a business is actively operating to be appropriate and reasonably open for consideration. The Tribunal also referenced relevant case law regarding the application of policy in reviewing discretionary powers.