Garber Food Pty Ltd (Migration)

This matter concerned an application by Garber Food Pty Ltd for approval of a nomination under the Direct Entry stream. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the requirements for approval of the nomination, specifically focusing on whether the nominator was actively and lawfully operating a business in Australia.

The primary legal issue before the Tribunal was whether the nominator, Garber Food Pty Ltd, satisfied the requirements of regulation 5.19(4)(b) of the Migration Regulations 1994, which mandates that the nominator be actively and lawfully operating a business in Australia. This required the Tribunal to assess the evidence provided by the applicant to demonstrate the ongoing operation and financial standing of the business.

The Tribunal reasoned that to satisfy regulation 5.19(4)(b), updated evidence of the business's financial circumstances, such as recent tax returns and BAS statements, was necessary. The Tribunal had invited the applicant to provide such updated information on 13 April 2023, but this request was not met. Consequently, the Tribunal was limited to considering documents that were several years out of date and could not be satisfied that the business was actively operating. As this essential criterion was not met, and the applicant had not sought to satisfy alternative criteria under the Temporary Residence Transition Nomination stream, the Tribunal affirmed the decision to refuse the nomination.