The Trustee for the Desi Family Trust (Migration)

This matter concerned an application for approval of a nomination of a position under the Temporary Residence Transition stream of the Migration Regulations 1994. The applicant sought to nominate a position for a Motor Mechanic (General). The Administrative Appeals Tribunal was required to determine whether the applicant met the requirements for approval of the nomination, specifically focusing on whether the nominator was actively and lawfully operating a business in Australia and whether the nominee would be employed full-time in the nominated position for at least two years.

The Tribunal considered the requirements of regulation 5.19(3) of the Migration Regulations 1994. Relevantly, regulation 5.19(3)(b)(ii) requires the nominator to be actively and lawfully operating a business in Australia, and regulation 5.19(3)(d)(i) requires that the nominee will be employed on a full-time basis in the position for at least two years. The Tribunal had invited the applicant to provide updated information regarding these and other criteria, including evidence of active business operation, financial capacity, and employment terms. Despite being invited to comment on information obtained from the Australian Business Register indicating the cancellation of the applicant's GST registration on 1 July 2018, and being advised that this information was relevant to the assessment of active business operation and financial capacity, the applicant provided no response or further information.

The Tribunal reasoned that the cancellation of the GST registration raised significant concerns about the applicant's ability to demonstrate that it was actively and lawfully operating a business in Australia at the time of the decision, and its financial capacity to employ the nominee full-time for at least two years. Given the lack of any response or further evidence from the applicant to address these concerns, the Tribunal was not satisfied that all the requirements of regulation 5.19(3) had been met. Consequently, the Tribunal affirmed the delegate's decision to refuse the nomination.