The Trustee for the Burger Unit Trust (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by The Trustee for the Burger Unit Trust (the applicant) to review a decision to refuse the approval of a nomination under the Direct Entry stream for a Cafe or Restaurant Manager. The applicant sought to nominate an individual for employment in a position within their business, Boss Burger Co.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the applicant was actively, lawfully, and directly operating a business in Australia, and if the nominated employee would be employed full-time for at least two years on terms that did not expressly preclude an extension.

The Tribunal found that while the application form and fee requirements were met, there was insufficient evidence to satisfy the requirement that the nominator was actively, lawfully, and directly operating a business in Australia. Although a website suggested the business name, no further evidence of ownership or trading status was provided. Furthermore, the Tribunal was unable to be satisfied that the nominee would be employed full-time for at least two years, as required by regulation 5.19(4)(d), due to a lack of evidence regarding the applicant's business and employment capacity. Consequently, the Tribunal affirmed the decision under review to refuse the nomination.