ALMA FOOD PTY LTD (Migration)

This matter concerned an application by ALMA FOOD PTY LTD for approval of a nomination under the Temporary Residence Transition stream of the Subclass 457 visa program. The applicant sought to nominate Ms Keiko Yamamoto for the position of Pastrycook. The core dispute revolved around whether the applicant, as the nominator, met the regulatory requirements for approving such a nomination, particularly concerning its status as an actively and lawfully operating business in Australia and its compliance with training benchmark commitments.

The Tribunal was required to determine if the applicant satisfied the criteria set out in regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the application was made in the approved form, whether the nominator was an actively and lawfully operating business in Australia, and whether the nominator had met its training benchmark commitments and complied with applicable obligations. The Tribunal also considered whether the nominated occupation matched the nominee's previous visa occupation and whether the employment terms and conditions offered were no less favourable than those provided to Australian citizens or permanent residents performing equivalent work.

The Tribunal found that the application met the formal requirements, including the correct form, fee, and identification of the nominee and occupation. It was satisfied, based on ASIC documentation and extensive financial and business activity statements, that ALMA FOOD PTY LTD was actively and lawfully operating a business in Australia. Furthermore, the Tribunal was satisfied that the nominator had fulfilled its training commitments and complied with relevant obligations during its most recent sponsorship approval period. The Tribunal also confirmed that the nominated occupation aligned with the nominee's previous Subclass 457 visa occupation and that the proposed employment terms were satisfactory.

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