GHK Food & Beverage (Aust) Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by GHK Food & Beverage (Aust) Pty Ltd concerning the refusal of a nomination for a Hotel Manager position under the Direct Entry stream. The core of the dispute was whether the nominator, GHK Food & Beverage (Aust) Pty Ltd, met the regulatory requirements for approving such a nomination, specifically concerning its active and lawful operation as a business in Australia.

The Tribunal was required to determine if GHK Food & Beverage (Aust) Pty Ltd satisfied the criteria outlined in regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether the nominator was actively and lawfully operating a business in Australia, as stipulated by regulation 5.19(4)(b)(i). The Tribunal also considered the applicant's request for a postponement of the decision to allow for the recommencement of business operations.

In its reasoning, the Tribunal found that the evidence, including the company's most recent tax return showing no income for the 2019-2020 period and the cessation of business operations in May 2019, indicated that the nominator was not actively operating a business. While acknowledging that the business's cessation may not have been the applicant's fault and that legal proceedings at VCAT and the onset of COVID-19 contributed to difficulties in securing new premises, the Tribunal noted that the business had ceased operating well before the pandemic's significant impact. The Tribunal concluded that it could not speculate on the future of the business and that the requirement for active operation under regulation 5.19(4)(b)(i) was not met.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination, as the applicant had not satisfied the necessary criteria under regulation 5.19(4). 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).