DB FOODS PTY LTD (Migration)

This matter concerned an application by DB Foods Pty Ltd for approval of a nomination for a position under the Temporary Residence Transition stream of the Migration Regulations 1994. The applicant sought to nominate Ms Mital Nikunjkumar Patel for the occupation of Pastrycook. The Administrative Appeals Tribunal was required to determine whether the applicant met the requirements for approval of this nomination, specifically under regulation 5.19(3).

The Tribunal was tasked with assessing whether the nomination application was compliant, including the correct form, fee, and identification of the nominee and occupation. It also needed to determine if the nominator, DB Foods Pty Ltd, was actively and lawfully operating a business in Australia and had met certain criteria regarding overseas business operations. Crucially, the Tribunal had to consider whether the nominee had met the employment duration and full-time employment requirements, and whether the terms and conditions of employment were appropriate. Finally, the Tribunal had to assess the nominator's compliance with training obligations and the absence of adverse information.

The Tribunal found that the nomination application was made in the approved form, with the prescribed fee paid, and correctly identified the nominee and the occupation of Pastrycook, which aligned with the nominee's Subclass 457 visa occupation. Evidence confirmed that DB Foods Pty Ltd, a Muffin Break franchise, was actively and lawfully operating a bakery café business in Ryde. The Tribunal was satisfied that the nominee had been employed full-time in the nominated occupation for at least two years, and that the terms and conditions of employment were not less favourable than those offered to Australian citizens or permanent residents. Furthermore, the Tribunal considered it reasonable to disregard the training requirement in this instance, noting that the nominee was offshore and affected by border closures, while still being employed full-time.

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