Sarva Pty Ltd (Migration)

This matter concerned an application by Sarva Pty Ltd for approval of a nomination for a restaurant manager position under the Direct Entry stream. The delegate of the Department of Home Affairs had refused the nomination, finding that regulation 5.19(4)(a)(ii) of the Migration Regulations 1994 was not met, as the applicant had not demonstrated a need to employ a paid employee in the nominated position under their direct control. The Administrative Appeals Tribunal was required to review this decision.

The primary legal issue before the Tribunal was whether Sarva Pty Ltd met all the requirements for the approval of its nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal needed to determine if the applicant had satisfied the criterion that the nominator is actively and lawfully operating a business in Australia, as stipulated in regulation 5.19(4)(b)(i).

The Tribunal noted that it had invited the applicant to provide updated and current information regarding all the requirements of regulation 5.19, including evidence that it was a company actively and lawfully operating a business in Australia. Despite specific examples of the type of information that could be provided, such as ASIC extracts, tax returns, business activity statements, and financial statements, the applicant failed to respond to this invitation. Consequently, the Tribunal had no current information before it to satisfy itself that Sarva Pty Ltd was actively and lawfully operating a business in Australia at the time of the decision.

As the applicant had not provided the necessary information to demonstrate compliance with the regulatory requirements, the Tribunal was unable to be satisfied that the nomination should be approved. Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.