CDC NOMINEES (TCTP) PTY LTD AS TRUSTEE FOR THE TCTP PARTICIPATING TRUST & INDIGENOUS BUSINESS AUSTRALIA (Migration)

The Administrative Appeals Tribunal (AAT) considered a review application by CDC Nominees (TCTP) Pty Ltd as Trustee for the TCTP Participating Trust and Indigenous Business Australia, trading as Tjapukai Aboriginal Park partnership ("the applicant"), concerning the refusal of a nomination for a Customer Service Manager position under the Direct Entry stream. The applicant's business, a tourism-based theme park in Cairns, had closed to the public in January 2021 due to the COVID-19 pandemic, leading to the nominee's employment being suspended and subsequently terminated due to redundancy.

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 was actively and lawfully operating a business in Australia at the time of the decision, as required by regulation 5.19(4)(b)(i). The Tribunal was also asked to consider referring the matter for Ministerial intervention under section 351 of the Migration Act 1958.

The Tribunal found that while the nomination application was initially compliant and identified a genuine need for the position at the time it was lodged, the applicant's business had ceased operations. The applicant conceded that the business was no longer active and had "closed its doors." This directly contravened the requirement under regulation 5.19(4)(b)(i) that the nominator be actively and lawfully operating a business in Australia. The Tribunal noted that there was no cogent evidence before it to suggest the business would resume operations in the foreseeable future.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal concluded that the nomination could not be approved because the applicant failed to meet the essential criterion of actively operating a business in Australia at the time of the decision. The request for a referral for Ministerial intervention was also considered but not pursued given the failure to meet the primary nomination requirements.