SARGUN GROUP PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Sargun Group Pty Ltd concerning a nomination under the Temporary Residence Transition stream. The dispute centred on whether the applicant, as the nominator, met the requirements for approval of the nomination, specifically concerning the active operation of its business in Australia and the intended employment of the nominee.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria set out in regulation 5.19(3) of the Migration Regulations 1994. This involved determining if the nominator was actively and lawfully operating a business in Australia, as required by regulation 5.19(3)(b)(ii), and whether the nominee would be employed on a full-time basis for at least two years, as stipulated by regulation 5.19(3)(d)(i).

The Tribunal reasoned that the applicant had failed to demonstrate it was actively and lawfully operating its business. Evidence presented, including the nominee's Subclass 457 visa cancellation in late 2017 and the subsequent cessation of business operations, along with nil activity on recent Business Activity Statements, supported this conclusion. The Tribunal found that the nominator did not meet the requirement of being actively and lawfully operating a business in Australia under regulation 5.19(3)(b)(ii). Consequently, the Tribunal was not satisfied that the applicant met the overall requirements of regulation 5.19(3).

The Tribunal affirmed the decision under review to refuse the nomination. As the applicant had not sought to satisfy the criteria for the Direct Entry nomination stream under regulation 5.19(4), the nomination could not be approved.