PKJS (Australia) Pty Ltd (Migration)

This matter concerned an application for approval of a nomination under the Direct Entry stream, brought by PKJS (Australia) Pty Ltd. The dispute arose when the Tribunal was not satisfied that the applicant was actively and lawfully operating a business in Australia at the time of the decision, and that the nominated position could not be filled by an Australian citizen or permanent resident residing in the same local area. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations, specifically concerning the active and lawful operation of a business in Australia. This required the Tribunal to assess whether the applicant had demonstrated that it was genuinely engaged in business activities and that the nominated position could not be filled by a local Australian worker.

The Tribunal's reasoning focused on the evidence presented regarding the applicant's business operations. Mrs. Gill, a former employee, candidly testified that the company had been sustaining losses since 2018 and had ceased operating its restaurant business in September 2021, with no current plans to recommence operations. While the applicant provided evidence of current registration with ASIC and an active ABN, this did not outweigh Mrs. Gill's clear testimony about the cessation of active business operations. The Tribunal noted that the principal reason for the business losses, as stated by Mrs. Gill, was the inappropriate location of the business, a factor predating the impact of the COVID-19 pandemic. Financial documents supported this, showing significant losses in the 2019 financial year, well before the pandemic's effects would have been felt.

The Tribunal affirmed the decision under review to refuse the nomination, concluding that the applicant had failed to demonstrate that it was actively and lawfully operating a business in Australia at the time of the decision.