New Hong Li Pty Ltd (Migration)

This matter concerned an application by New Hong Li Pty Ltd for approval of a nomination under the Temporary Residence Transition stream. The dispute arose when the Department of Home Affairs refused to approve the nomination. The applicant sought review of this decision before the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the application was compliant, the status of the nominator as an actively and lawfully operating business, whether the nominee had satisfied training obligations, and whether there was any adverse information known to Immigration concerning the nominator or associated persons that could not be disregarded.

The Tribunal found that the application was made in the approved form, identified the nominee and the occupation of Massage Therapist, and that the nominator was an actively and lawfully operating business. It also found that the nominee had been employed full-time in the nominated occupation prior to the application and that the employment was to continue for at least two years, with no exclusion of extension. Crucially, the Tribunal considered two instances of adverse information: an incident where the nominee's father was found on the premises and late lodgement of tax returns. In relation to the father's presence, the Tribunal accepted the explanation provided and noted that no adverse action was ultimately taken by Border Force. Regarding the tax returns, the Tribunal noted that all substantive payments had been made and a waiver of penalties was sought. In both instances, the Tribunal considered it reasonable to disregard the adverse information. The Tribunal was satisfied that the nominator had fulfilled its training obligations.

Consequently, the Tribunal set aside the decision under review and substituted a decision approving the nomination.