9th House Traders Pty Ltd (Migration)

This matter concerned an application by 9th House Traders Pty Ltd for approval of a nomination of a position under the Temporary Residence Transition stream. The dispute arose when the Department of Immigration refused to approve the nomination. The applicant sought review of this decision before the Tribunal.

The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the application was compliant, whether the nominator was actively and lawfully operating a business in Australia, and whether the nominator had met certain criteria relating to overseas business operations in its most recent sponsorship approval. Further issues included whether the nominee had held the requisite visas and been employed in the nominated occupation for the specified periods, and whether the nominator had fulfilled its training requirements or if it was reasonable to disregard this requirement.

The Tribunal found that the application was made in the approved form, accompanied by the prescribed fee, and included the necessary certification, thus satisfying regulation 5.19(3)(a). Regarding the nominator's status under regulation 5.19(3)(b), the Tribunal was satisfied that the company was the standard business sponsor who last identified the nominee and was actively and lawfully operating a business in Australia. The Tribunal also noted that the company had not met certain criteria relating to overseas business operations in its most recent sponsorship approval. Crucially, the Tribunal considered the circumstances of the business, including a change in directorship and a new business model focused on an online portal, which had been developed to enhance client flexibility and brand integrity. The Tribunal also addressed the training benchmark requirement under regulation 5.19(3)(f), finding that while there had been previous shortfalls, it was reasonable to disregard this requirement given the new director's lack of awareness and the rectification of past issues.

Consequently, the Tribunal set aside the decision under review and substituted a decision approving the nomination.