ALD Pty Ltd (Migration)

This matter concerned an application by ALD Pty Ltd for approval of a nominated position under the Temporary Residence Transition nomination stream. The applicant sought to have a decision of the Department of Home Affairs reviewed by the Administrative Appeals Tribunal. The core of the dispute revolved around whether ALD Pty Ltd met the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994.

The Tribunal was required to determine whether the nomination application complied with the prescribed form and fee requirements, whether the nominator was a standard business sponsor actively and lawfully operating a business in Australia, and whether the nominee had the requisite previous employment history in the nominated position. Specifically, the Tribunal had to assess if the nominee had been employed full-time in Australia in the nominated position for at least two of the three years preceding the nomination application, or if an alternative criterion relating to a Subclass 457 visa nomination was met.

In its reasoning, the Tribunal found that the nomination application was compliant with regulation 5.19(3)(a). It was satisfied that ALD Pty Ltd was the relevant standard business sponsor, actively and lawfully operating in Australia, and had not met certain overseas business operation criteria in its most recent sponsorship approval, thus satisfying regulation 5.19(3)(b). Crucially, the Tribunal examined the nominee's employment history and concluded that the nominated occupation of Cook was not listed in the relevant documentation for the alternative criterion under regulation 5.19(3)(c)(ii). Therefore, the Tribunal applied the primary criterion under regulation 5.19(3)(c)(i), finding that the nominee had met the requirements for previous employment.

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