CAHILL VICTORIA PTY LTD ATF SINGH FAMILY TRUST (Migration)

The Administrative Appeals Tribunal (AAT) considered a review of a decision to refuse the approval of a nomination for a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream. The applicant was Cahill Victoria Pty Ltd ATF Singh Family Trust, and the decision under review was made by a delegate of the Minister. The Tribunal, presided over by Stephen Witts, was tasked with determining whether the nomination met the general and stream-specific requirements of Regulation 5.19 of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant had satisfied the general requirements for approval of a nomination under reg 5.19(4) and the specific requirements for the Direct Entry stream under reg 5.19(9). Crucially, the Tribunal had to consider whether the applicant had correctly determined the annual market salary rate (AMSR) and whether the nominator was actively and lawfully operating a business in Australia, as required by the regulations.

The Tribunal's reasoning focused on the fact that Cahill Victoria Pty Ltd had been deregistered by the Australian Securities and Investments Commission (ASIC) on 20 September 2021. This deregistration meant that the nominator was no longer actively and lawfully operating a business in Australia, a prerequisite for approval under reg 5.19(9)(a). Furthermore, the Tribunal noted that the delegate had not been satisfied that the AMSR had been determined in accordance with the relevant legislative instrument. As all requirements of reg 5.19 must be met for a nomination to be approved, and the applicant failed to satisfy at least one of these, the Tribunal concluded that the nomination could not be approved.

Consequently, the Tribunal affirmed the delegate's decision to refuse the nomination.