The Trustee for the Ben Johnston Family Trust (Migration)

The case involved an appeal by The Trustee for the Ben Johnston Family Trust (the applicant) against a decision to refuse its nomination under the Direct Entry nomination stream. The applicant sought to nominate an individual for a Retail Manager position. The primary dispute concerned whether the applicant, as the nominator, was actively and lawfully operating a business in Australia at the time of the decision, a key requirement for approval under the Migration Regulations 1994.

The legal issue before the Tribunal was whether the applicant satisfied the criteria for approval of a nomination under regulation 5.19(4) of the Migration Regulations 1994, specifically the requirement that the nominator be actively and lawfully operating a business in Australia and directly operate that business. The Tribunal was required to consider the evidence presented by the applicant and the Department of Home Affairs in light of the relevant legislative provisions and established policy.

The Tribunal affirmed the decision under review to refuse the nomination. It reasoned that the applicant had not provided sufficient evidence to satisfy the requirement that it was actively and lawfully operating a business in Australia. While acknowledging that it was not bound by departmental policy, the Tribunal considered the policy's guidance on assessing active operation, which suggested that businesses operating for over 12 months should provide appropriate financial documentation. The applicant, having stated its commencement of trading in June 2017, failed to submit the required financial statements or tax returns for the relevant fiscal year, leading the Tribunal to conclude that it was not satisfied that the applicant was actively and lawfully operating its business at the time of the decision.