Salay Investments Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered a migration matter involving Salay Investments Pty Ltd (the applicant) and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the approval of a nomination for a position under the Temporary Residence Transition stream. The applicant sought to have a decision to refuse its nomination for a Cook position reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant, Salay Investments Pty Ltd, met the requirements of regulation 5.19(3) of the Migration Regulations 1994, specifically subregulation (3)(b)(ii), which mandates that the nominator must be actively and lawfully operating a business in Australia. The Tribunal also considered the applicant's submission that the business had undergone a restructure, with the catering operations now being conducted by a related entity, Salay Trading (Qld) Pty Ltd.

The Tribunal reasoned that for the nomination to be approved, all requirements of regulation 5.19(3) must be satisfied. Evidence indicated that Salay Investments Pty Ltd, while still registered, was no longer actively involved in the business operations. Instead, the business, including the employment of the nominee, had been transferred to Salay Trading (Qld) Pty Ltd, a separate entity incorporated in 2015. The Tribunal found that Salay Investments Pty Ltd was not actively operating the business at the time of the nomination. Consequently, the Tribunal affirmed the decision under review to refuse the nomination.