The Trustee For The Hakbilir Family Trust (Migration)

The Administrative Appeals Tribunal considered an application by The Trustee for the Hakbilir Family Trust, trading as Sunshine Kebabs, for approval of an employer nomination for the position of Retail Manager. The dispute arose from the delegate's decision to refuse the nomination, which the applicant sought to have reviewed by the Tribunal. The core issue was whether the nominator met the requirements for approval under the Direct Entry nomination stream, specifically the criterion that the nominator must be actively and lawfully operating a business in Australia.

The Tribunal was required to determine if the nominator satisfied all the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nomination. A key aspect of this determination was whether the nominator was actively and lawfully operating a business in Australia, as stipulated by regulation 5.19(4)(b). The Tribunal also considered the applicant's response, or lack thereof, to invitations to provide updated and current information demonstrating compliance with the relevant regulations.

The Tribunal's reasoning focused on the nominator's failure to provide requested information demonstrating it was actively and lawfully operating a business. Despite being invited to provide evidence such as ASIC extracts, financial statements, tax returns, bank statements, or BAS statements, the applicant did not respond. The Tribunal noted that the ABN used by the nominator was not currently registered for GST purposes, a fact also observed by the delegate. Consequently, the Tribunal could not be satisfied that the nominator met the requirement of actively, lawfully, and directly operating a business in Australia under regulation 5.19(4)(b). As all requirements must be met for approval, and this essential criterion was not satisfied, the Tribunal affirmed the delegate's decision to refuse the nomination.