MD Bros Pty Ltd (Migration)

This matter concerned an appeal by MD Bros Pty Ltd against a decision to refuse the approval of its nomination under the Direct Entry stream. The core of the dispute revolved around whether the applicant, as the nominator, was actively and lawfully operating a business in Australia, a requirement stipulated by regulation 5.19(4)(b) of the Migration Regulations. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the delegate's decision.

The legal issues before the Tribunal were whether the applicant had provided sufficient evidence to satisfy the requirements of regulation 5.19(4)(b), specifically concerning the active and lawful operation of its business. The Tribunal considered the Department's policy, which indicated that businesses operating for more than 12 months should provide appropriate financial documentation, such as balance sheets, profit and loss statements, or tax returns for the most recently concluded fiscal year. The Tribunal also examined the requirement for lawful operation, which necessitates that the business name registered with the Australian Securities and Investments Commission (ASIC) matches the name provided in the nomination application.

The Tribunal reasoned that while the applicant had provided ASIC and ABN Lookup evidence demonstrating the registration and active status of its business and associated names as at 18 February 2019, no more recent information regarding its business activities had been submitted. Crucially, the applicant had failed to produce any financial statements, taxation returns, or business activity statements to substantiate its claim of actively operating the business. The Tribunal noted that it was not bound by the Department's policy but would ordinarily apply it unless it was unlawful or produced an unjust outcome, referencing the principles established in *Re Drake and Minister for Immigration and Ethnic Affairs (No 2)*. Given the lack of current financial evidence and the failure to provide current ASIC extracts as requested, the Tribunal found that the applicant had not met the evidentiary requirements for active and lawful operation.

Consequently, the Tribunal affirmed the delegate's decision to refuse the nomination.