The Trustee for the Perkin Family Trust and the Trustee for the SHS Family Trust (Migration)

The Administrative Appeals Tribunal considered an application for approval of a nomination of a position under the direct entry stream. The applicants were identified as The Trustee for the Perkin Family Trust and the Trustee for the SHS Family Trust, with a business registration identifier of ABN 13080068815. The dispute concerned whether the applicants met the requirements for approval of the nomination, specifically whether the nominator was actively and lawfully operating a business in Australia.

The primary legal issue before the Tribunal was to determine whether the applicants satisfied the criteria set out in regulation 5.19(4) of the Migration Regulations 1994 for the approval of a direct entry nomination. This involved assessing whether the nominator was actively and lawfully operating a business in Australia, as required by regulation 5.19(4)(b)(i), and whether the nominator directly operated the business, as per regulation 5.19(4)(b)(ii). The Tribunal also had to consider the evidence presented by the applicants and the Department of Home Affairs in light of the relevant regulations.

The Tribunal affirmed the decision under review to refuse the nomination. The Tribunal noted that the applicants had not provided a response to an invitation to supply current information, and there was insufficient evidence to establish that the business was actively and lawfully operating. While the applicants provided various documents to the Department, including financial statements and an employment contract, the Tribunal found these did not sufficiently demonstrate the ongoing active operation of the business. The Tribunal referenced the principle that when reviewing a discretionary power, it should ordinarily apply departmental policy unless it is unlawful or leads to an unjust decision, but ultimately found the evidence insufficient to meet the regulatory requirements.