OTTOWAY ENGINEERING PTY LTD (Migration)

The Administrative Appeals Tribunal considered a decision to refuse the nomination of Alexander Saul by Ottoway Engineering Pty Ltd (Ottoway) under the Temporary Residence Transition stream of the Regional Employer Nomination (subclass 187) visa. The core dispute revolved around whether Ottoway, which had gone into administration and had its business purchased by Ferretti International Pty. Ltd. (Ferretti), continued to meet the requirements for the nomination, particularly concerning its financial capacity to maintain the employment for at least two years and its fulfilment of training benchmarks.

The legal issues before the Tribunal were whether Ottoway, as the original nominator, still had the legal standing to pursue the nomination review after its business was acquired by Ferretti, and consequently, whether Ferretti could substitute itself as the nominator. The Tribunal was required to interpret the relevant provisions of the Migration Regulations 1994, specifically those defining a "nominator" and the requirements for approving a nominated position under the Temporary Residence Transition stream.

The Tribunal reasoned that the definition of a nominator under regulation 1.13 of the Migration Regulations is specific to the entity that completes the nomination form. It found that Ottoway remained the nominator and the applicant before the Tribunal, despite its operational cessation and the acquisition of its business by Ferretti. While Ferretti had acquired Ottoway's assets and employees and continued the business, the Tribunal determined that Ferretti did not have standing to continue the review in place of Ottoway, as it was not the party that made the original nomination application. The Tribunal concluded that Ottoway, though no longer actively operating, was the only party with legal standing in the review proceedings.

Consequently, the Tribunal affirmed the delegate's decision to refuse the nomination. The Tribunal made no findings on the substantive merits of the nomination, such as financial capacity or training benchmarks, as it found the standing issue to be insurmountable.