Creatively Cheeky Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the nomination of a position for the Temporary Residence Transition stream of the Subclass 457 visa program. The applicant, Creatively Cheeky Pty Ltd, sought approval for the nomination of Mr. Jean Marc Alexandre Frivet for the occupation of Chef. The AAT was tasked with reviewing a previous decision that had not approved this nomination.

The primary legal issue before the Tribunal was whether the applicant met all the requirements stipulated in regulation 5.19(3) of the Migration Regulations 1994 for the approval of the nomination. This involved determining if the application was made in the approved form, if the nominee held the requisite Subclass 457 visa, if the nominated occupation matched the one performed by the visa holder, and if the nominator was a lawfully operating Standard Business Sponsor. Crucially, the Tribunal had to assess whether the nominee had been employed in the nominated position for the required duration and under appropriate terms and conditions, and whether the nominator had fulfilled its training obligations.

The Tribunal reasoned that the application satisfied the formal requirements of regulation 5.19(3)(a), including the correct form, fee, and identification of the nominee and occupation. It found that the nominee, Mr. Frivet, held a Subclass 457 visa and was performing the duties of a Chef, aligning with ANZSCO 351311. The Tribunal was satisfied that the nominator was a Standard Business Sponsor actively operating in Australia. Furthermore, the evidence presented indicated that the nominee had been employed in the position for at least two years, fulfilling the employment duration requirement under regulation 5.19(3)(c)(i). The Tribunal also considered the nominator's training obligations under regulation 5.19(3)(f), finding them to be met.

Consequently, the Tribunal set aside the previous decision and substituted a new decision approving the nomination.