Harristown Construction Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Harristown Construction Pty Ltd for approval of a nomination for a Carpenter position under the Temporary Residence Transition stream. The applicant sought to nominate Mr Shane McCarthy, the company's Director, who had previously been sponsored by Harristown Construction Pty Ltd for a Subclass 457 visa. The core dispute revolved around whether the nominating business, Harristown Construction Pty Ltd, was actively and lawfully operating in Australia at the time of the nomination, as required by migration regulations.

The legal issues before the Tribunal were whether Harristown Construction Pty Ltd met the general requirements for approval of a nomination under regulation 5.19(4) and the specific requirements for the Temporary Residence Transition stream under regulation 5.19(5) of the Migration Regulations 1994. Crucially, the Tribunal had to determine if the nominator was "actively and lawfully operating a business in Australia" as stipulated by regulation 5.19(5)(h)(ii).

The Tribunal reasoned that while Harristown Construction Pty Ltd was lawfully registered as a company in Australia, it was not actively operating a business. This conclusion was based on evidence that the company's owner and Director, Mr McCarthy, had been residing offshore in Ireland since February 2021. The Tribunal found that the absence of Mr McCarthy and the lack of updated financial information or evidence of ongoing business activity since the application's lodgement meant the requirement for the business to be actively operating was not met. The Tribunal affirmed the decision to refuse the nomination.