Opinder Singh Sidhu (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by Opinder Singh Sidhu concerning the approval of a nominated position for a visa application. The core of the dispute revolved around whether the applicant, as the nominator, met the requirements for operating an actively and lawfully operating business in Australia, as stipulated by the Migration Regulations 1994.

The legal issue before the Tribunal was whether the nominator satisfied the requirements of regulation 5.19(4) and, specifically for the Direct Entry stream, regulation 5.19(9)(a) of the Migration Regulations 1994. Regulation 5.19(9)(a) mandates that the nominator must be actively and lawfully operating a business in Australia. The Tribunal had to determine if sufficient evidence was presented to demonstrate this ongoing operational status.

The Tribunal found that while the nominator's Australian Business Number remained registered, there was no further evidence, such as Business Activity Statements or company tax returns, to establish that the business was actively operating at the time of the decision. The applicant had not provided any information regarding their business since the application was lodged. Consequently, the Tribunal concluded that the requirement under regulation 5.19(9)(a) was not met, which in turn meant that regulation 5.19(4)(f) was also not satisfied.

As the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19, it was obliged under regulation 5.19(3)(b) to refuse the nomination. Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.