D Company PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision by a delegate of the Minister to refuse the approval of a nominated position. The applicant, D Company PTY LTD, sought approval for a Cook position under the Direct Entry stream of the Employer Nomination Scheme (Subclass 186 visa). The dispute centred on whether the applicant was actively and lawfully operating a business in Australia, a requirement under regulation 5.19(9)(a) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if D Company PTY LTD satisfied the requirement of being an actively and lawfully operating business in Australia at the time of the nomination. This involved assessing the evidence presented by the applicant and any information obtained by the Tribunal to ascertain the current trading status and operational capacity of the business, specifically the restaurant trading as D Bollywood Indian Restaurant.

The Tribunal affirmed the delegate's decision to refuse the nomination. The Tribunal found that the applicant had failed to provide current information demonstrating that the business was actively trading, despite being invited to do so by the Tribunal. Evidence indicated the restaurant had been closed prior to October 2019, the telephone number was disconnected, and there was no recent financial or lease information to suggest ongoing operation. Given the lack of satisfactory evidence of current business activity, the Tribunal was not satisfied that the applicant met the requirement under regulation 5.19(9)(a).

Consequently, the Tribunal concluded that the nomination did not meet the necessary requirements for approval under the Migration Regulations. As a result, the Tribunal affirmed the decision under review to refuse the nomination.