Phuong Vo Australia Pty Ltd (Migration)

This matter concerned an application by Phuong Vo Australia Pty Ltd for approval of a nomination under the Temporary Residence Transition stream. The applicant lodged its nomination approval application on 19 April 2016. The core of the dispute revolved around whether the applicant met all the requirements stipulated in regulation 5.19(3) of the Migration Regulations 1994, particularly concerning the presence of adverse information known to Immigration.

The legal issue before the Tribunal was whether Phuong Vo Australia Pty Ltd satisfied the criteria for approval of its nomination, specifically regulation 5.19(3)(g), which requires that there be no adverse information known to Immigration about the nominator or a person associated with the nominator, or that any such information be reasonable to disregard. The Tribunal was required to consider the definition of "adverse information" as provided in regulation 1.13A, which includes contraventions of Commonwealth, State, or Territory laws relating to a range of matters, including immigration and industrial relations, or being subject to administrative action or investigation for such contraventions.

The Tribunal affirmed the decision to refuse the nomination based on the applicant's failure to meet regulation 5.19(3)(g). On 13 September 2016, Phuong Vo Australia Pty Ltd was sanctioned under s.140M(2) of the Act for failing to comply with sponsorship undertakings, resulting in a 12-month ban on making future applications as a standard business sponsor. Although the Department provided the applicant with an opportunity to comment on this adverse information and whether it should be disregarded, no response was received by the Department's decision date of 6 December 2016. Consequently, the Department found that the applicant had not met the requirement of regulation 5.19(3)(g)(i).

The Tribunal concluded that as there was adverse information known to the Department about the nominator, and the applicant had not provided a response to address this, the nominator had not satisfied regulation 5.19(3)(g). Furthermore, the applicant had not sought to satisfy the criteria for the Direct Entry nomination stream, meaning it had not met the requirements of regulation 5.19(4). Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.