Modern Holdings (WA) Pty Ltd ATF Modern Unit Trust (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse the approval of a nomination for a Retail Manager position under the Direct Entry nomination stream. The applicant, Modern Holdings (WA) Pty Ltd ATF Modern Unit Trust, sought to nominate a position for a Retail Manager (ANZSCO code 142111) within its "Skewerz Mandurah" business. The nominator initially claimed to operate five fast-food outlets, but during the application process, three ceased operating due to issues with centre management and parking, and another was listed for sale.

The Tribunal was required to determine whether the nominator met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the court needed to assess if there was a genuine need to employ the nominee as a Retail Manager under the nominator's direct control, and if the position could not be filled by an Australian citizen or permanent resident in the local area. The Tribunal also considered whether the nominator was actively and lawfully operating a business in Australia.

The Tribunal affirmed the decision to refuse the nomination. It found that the nominator had not demonstrated a genuine need for the nominee, nor had it shown that the position could not be filled locally. Crucially, despite the nominator's assertion of ongoing litigation with a landlord causing a temporary halt in trading, the provided documentation, including Business Activity Statements, suggested that the nominator was not currently operating any businesses. This failure to demonstrate active business operations meant the nominator did not meet the requirement of being actively and lawfully operating a business in Australia under regulation 5.19(4)(b)(i).

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