THE OPAL INN PTY LTD ATF THE OPAL INN UNIT TRUST (Migration)

This matter concerned an appeal by THE OPAL INN PTY LTD ATF THE OPAL INN UNIT TRUST against a decision to refuse the approval of a nomination for a position under the Direct Entry stream of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4).

The primary legal issue before the Tribunal was whether the nominator, THE OPAL INN PTY LTD ATF THE OPAL INN UNIT TRUST, had satisfied the criteria stipulated in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the nominator was actively and lawfully operating a business in Australia, and whether the nominated position met the other requirements for approval under the Direct Entry nomination stream.

The Tribunal affirmed the decision to refuse the nomination, finding that the nominator had failed to provide updated and current evidence to demonstrate that it was actively, lawfully, and directly operating a business in Australia at the time of the decision. The Tribunal noted the applicant's failure to respond to correspondence from the Tribunal since 2018, which meant it could not be satisfied that the requirement under regulation 5.19(4)(b) was met. As all requirements of regulation 5.19(4) must be met for approval, and the applicant had not sought to satisfy the criteria for the Temporary Residence Transition Nomination stream under regulation 5.19(3), the nomination could not be approved.