Thomas and Associates Pty Ltd Atf Shang Enterprises Trust (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the approval of a nomination for a Temporary Residence Transition stream visa. The applicant, Thomas and Associates Pty Ltd Atf Shang Enterprises Trust, sought approval for a nomination for the occupation of Sales and Marketing Manager in favour of Ms. Wan Zhou. The Tribunal, presided over by Member De-Anne Kelly, was tasked with determining whether the applicant met the requirements for nomination approval under the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the nominator was actively and lawfully operating a business in Australia, as required by regulation 5.19(5)(h), and whether there was a genuine need for the identified person to be employed in the nominated position, as stipulated by regulations 5.19(5)(j) and (k). The Tribunal also considered the general requirements for nomination approval under regulation 5.19(4).

The Tribunal's reasoning focused on the evidence presented, or rather the lack thereof. Open-source information suggested that the nominated business, Mortgage Choice Southport, was under new ownership and had been purchased from Mr. Shang in April 2019, prior to the application. Furthermore, a Departmental officer's call confirmed this change of ownership. The Tribunal found scant evidence that Thomas and Associates Pty Ltd Atf Shang Enterprises Trust was actively and lawfully operating the business. Consequently, the Tribunal was not satisfied that regulation 5.19(5)(h) was met, which in turn meant that regulation 5.19(4)(e) was also not met.

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