Yung Chen Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a dispute concerning the approval of a nominated position under the Temporary Residence Transition stream. The applicant, Yung Chen Pty Ltd, sought to have a nomination approved, but this decision was under review following an initial refusal. The Tribunal was tasked with determining whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(3) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominator, Yung Chen Pty Ltd, satisfied the requirement under regulation 5.19(3)(b)(ii) to be actively and lawfully operating a business in Australia. This assessment was complicated by the applicant's failure to provide any evidence to the Tribunal since lodging the review application in 2018 and their lack of response to the Tribunal's correspondence. The Tribunal also considered whether the applicant met the criteria for the Direct Entry nomination stream under regulation 5.19(4), which they had not sought to satisfy.

The Tribunal reasoned that in the absence of any contemporary evidence demonstrating that Yung Chen Pty Ltd was actively and lawfully operating a business in Australia, it could not be satisfied that the requirement in regulation 5.19(3)(b)(ii) was met. The failure to provide requested information and respond to correspondence meant that the nominator had not discharged its evidential burden. Consequently, the Tribunal concluded that the applicant had not met the necessary requirements for the approval of the nomination under regulation 5.19(3) and had also failed to meet the criteria for the Direct Entry nomination stream under regulation 5.19(4).

The Tribunal affirmed the decision under review to refuse the nomination.