Welvin & Kevin Pty Ltd (Migration)

This matter concerned an application by Welvin & Kevin Pty Ltd for approval of a nominated position under the Direct Entry stream of the Subclass 186 (Employer Nomination Scheme) visa. The applicant sought to nominate a position as a café or restaurant manager. The Administrative Appeals Tribunal (AAT) was required to review the decision of the Department of Home Affairs to refuse the nomination.

The primary legal issue before the Tribunal was whether the applicant met the general requirements for approval of a nomination under regulation 5.19(4) and the specific requirements for the Direct Entry stream under regulation 5.19(9) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the nominator was actively and lawfully operating a business in Australia, as required by regulation 5.19(9)(a).

The Tribunal affirmed the decision to refuse the nomination. It noted that for a business established for more than 12 months, the Department's policy, which the Tribunal considered appropriate to apply, required the provision of financial documentation such as a balance sheet and profit and loss statement. The applicant had not provided such documentation, nor had it provided evidence of the active operation of its business, despite being granted an extension of time. The Tribunal found that the applicant had failed to satisfy the requirement that it was actively and lawfully operating a business in Australia. Consequently, the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19, and under regulation 5.19(3)(b), the nomination had to be refused.