AUSTRAL AIR CONDITIONING SERVICES PTY LTD (Migration)

This matter concerned an application by AUSTRAL AIR CONDITIONING SERVICES PTY LTD for approval of a nominated position under the Temporary Residence Transition stream. The applicant operates an air conditioning business and had sponsored Mr Paul Azadian for a Subclass 457 visa. The delegate refused the nomination application on the basis that the terms and conditions of Mr Azadian's employment did not satisfy regulation 5.19(3)(d)(ii) of the Migration Regulations 1994, as they were not satisfied that the employment contract did not expressly exclude the possibility of extending the period of employment. The Administrative Appeals Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination under regulation 5.19(3).

The Tribunal considered whether the applicant had demonstrated that the terms and conditions of Mr Azadian's employment would not include an express exclusion of the possibility of extending the period of employment, as required by regulation 5.19(3)(d)(ii). The delegate's decision was based on an Offer of Appointment and Employment Conditions dated 14 October 2016. The applicant provided a contract of employment dated 20 April 2018, which did not contain such an express exclusion. The Tribunal also considered the applicant's submissions regarding the business's reliance on Mr Azadian's ongoing sponsorship and the fact that he had occupied the position of Mechanical Engineer since obtaining his Subclass 457 visa in October 2014.

The Tribunal found that the applicant had met the requirements of regulation 5.19. Specifically, it was satisfied that the employment contract did not contain an express exclusion of the possibility of extending the period of employment. The Tribunal therefore set aside the delegate's decision and substituted a decision approving the nomination.