Gamini Dharmakerthi Palliyaliyanage (Migration)

This matter concerned an application for approval of a nomination of a position under the Temporary Residence Transition stream. The applicant sought to nominate a hairdresser position, asserting that their business was actively operating and had the financial capacity to employ the nominee for two years. The decision under review affirmed the refusal of this nomination.

The primary legal issue before the Tribunal was whether the applicant had satisfied all the requirements for the approval of the nomination as stipulated in regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nominator was actively and lawfully operating a business in Australia, and if sufficient and appropriate financial documentation had been provided to demonstrate this active operation for the required period.

The Tribunal reasoned that regulation 5.19(3)(b)(ii) requires the nominator to be actively and lawfully operating a business in Australia. While not bound by policy, the Tribunal adopted the Department's policy, which suggests that businesses operating for over 12 months should provide appropriate financial documentation, including a balance sheet and profit and loss statement for the most recent fiscal year, or business tax returns. The applicant provided activity statements for October 2017 to September 2018, profit and loss statements for the 2017 and 2018 financial years, and tax returns for those years, but no more recent information was presented. Crucially, balance sheets were not provided. The Tribunal found that the provided documentation did not sufficiently demonstrate the active operation of the business in accordance with the policy.

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