Dragon Spirit Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a dispute concerning the nomination of a position for a Cook under the Direct Entry nomination stream. The applicant sought to have the nomination approved, but the decision under review had refused it.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for the approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nominator was actively and lawfully operating a business in Australia, as required by regulation 5.19(4)(b).

The Tribunal's reasoning focused on the lack of evidence provided by the applicant to satisfy the requirements of regulation 5.19(4)(b). The applicant had not submitted any contemporary evidence to the Tribunal since lodging the application for review and had failed to respond to the Tribunal's correspondence. In the absence of such evidence, the Tribunal could not be satisfied that the nominator was actively, lawfully, and directly operating a business in Australia. Consequently, the Tribunal found that this essential requirement of regulation 5.19(4) was not met. The Tribunal also noted that the applicant had not sought to satisfy the criteria for the Temporary Residence Transition Nomination stream under regulation 5.19(3).

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.