QIAM PTY LTD (Migration)

The Administrative Appeals Tribunal considered a decision to refuse the approval of a nomination made by QIAM PTY LTD. The dispute concerned whether the nominated position for a Chef under the Direct Entry stream met the requirements of Regulation 5.19(4) of the Migration Regulations 1994. The Tribunal was tasked with determining if the nominator, QIAM PTY LTD, satisfied the criteria relating to active and lawful operation of its business, the terms of employment for the nominee, and the genuine need for the nominated position.

The Tribunal was required to assess whether QIAM PTY LTD was actively and lawfully operating a business in Australia, and directly operating the nominated business, "Village Spice Cuisine". It also needed to determine if the nominee would be employed for at least two years with terms and conditions that did not expressly exclude an extension. Furthermore, the Tribunal had to consider if there was a genuine need for the paid position under the nominator's direct control, particularly in regional Australia, and if it could not be filled by a local Australian citizen or permanent resident.

In its reasoning, the Tribunal found that while QIAM PTY LTD was a registered corporation and operated lawfully, there was insufficient objective and current information to establish that the business was "actively" operating or under the nominator's direct control. This conclusion was based on the lack of current financial information, the absence of a registered trading name connecting "Village Spice Cuisine" to the applicant, and the removal of the business's previous website. The Tribunal also noted a change in ownership in 2019. Consequently, the Tribunal was unable to determine the terms of the nominee's employment or the likelihood of its continuation for at least two years. Due to the lack of evidence of active operation and direct control, the Tribunal also found that a genuine need for the paid position could not be established.

As a result of these findings, the Tribunal determined that QIAM PTY LTD failed to meet the requirements of Regulations 5.19(4)(b), 5.19(4)(d), and 5.19(4)(h)(ii)(B). Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.