ISMAIL, ARIF AHMER (Migration)

This matter concerned an application for approval of a nomination under the Temporary Residence Transition stream of the Migration Regulations 1994. The applicant, Arif Ahmer Ismail, trading as Python Technologies, sought to have a nomination approved. The Tribunal 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 satisfied the requirement under regulation 5.19(3)(b)(ii) of the Migration Regulations 1994, which mandates that the nominator be actively and lawfully operating a business in Australia. This requirement was central to the assessment of the nomination, as failure to meet it would result in the refusal of the application. The Tribunal also considered whether it was necessary to assess adverse information known to Immigration, but this became moot once the primary criterion was not met.

The Tribunal's reasoning centred on information obtained from the Australian Business Register and ASIC, which indicated that the Australian Business Number (ABN) and business name registration for "Python Tech" had been cancelled. The applicant was provided with this information and invited to respond pursuant to section 359A of the Migration Act 1958, but failed to do so. In the absence of a response, the Tribunal was unable to be satisfied that the nominator was actively and lawfully operating a business in Australia, and therefore concluded that regulation 5.19(3)(b)(ii) was not met. As this was a mandatory requirement for the approval of the nomination, the Tribunal found it unnecessary to consider other criteria, including the presence of adverse information.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. The applicant had not met the requirements of regulation 5.19(3) and had not sought to satisfy the criteria under the Direct Entry nomination stream, meaning the nomination could not be approved.