The Trustee for Wang and Yuan Family Trust T/AS Ant&Elephant Cafe (Migration)

The matter before the Tribunal concerned a nomination lodged by The Trustee for Wang and Yuan Family Trust T/AS Ant&Elephant Cafe for a Regional Sponsored Migration Scheme visa (subclass 187) in the Direct Entry Stream for the position of Café & Restaurant Manager. The applicant sought to nominate Mr Kian Seong TENG for this position. The dispute centred on whether the nominator met the general and stream-specific requirements for the approval of the nomination under the Migration Regulations 1994.

The Tribunal was required to determine if the nominator was actively and lawfully operating a business in Australia, as required by regulation 5.19(9)(a), and if the annual earnings for the nominated position met the specified requirements under regulation 5.19(9)(h), which referenced regulation 2.72(15). These determinations were crucial for the overall satisfaction of the nomination requirements under regulation 5.19(4)(f) and 5.19(9).

The Tribunal's reasoning focused on the lack of sufficient evidence provided by the applicant. Despite a request for updated financial information, including tax returns and BAS statements, to demonstrate the business was actively and lawfully operating, the applicant failed to provide this. The Tribunal found the existing documentation to be outdated and insufficient to satisfy regulation 5.19(9)(a). Consequently, the Tribunal was not satisfied that the nominator met this requirement, which in turn meant regulation 5.19(4)(f) was not met. The Tribunal also considered the requirements for annual earnings under regulation 5.19(9)(h) but based its decision on the failure to meet the preceding criteria.

As the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19, it was obliged under regulation 5.19(3)(b) to refuse the nomination. Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.