EAST BURNING PTY. LTD (Migration)

This matter concerned an application by EAST BURNING PTY. LTD for approval of a nominated position under the Temporary Residence Transition stream. The applicant sought to have a position of Marketing Specialist approved, which was occupied by a nominee who held a Subclass 457 visa. The core of the dispute revolved around whether the applicant met the specific requirements of regulation 5.19(3) of the Migration Regulations 1994 for the approval of this nomination.

The Tribunal was required to determine if the applicant had satisfied all the criteria stipulated in regulation 5.19(3). This included assessing whether the application was made in the approved form, accompanied by the prescribed fee, and included the necessary written certification. Crucially, the Tribunal had to consider whether the nominated occupation was listed in ANZSCO and shared the same 4-digit occupation unit group code as the nominee's current occupation. Furthermore, the Tribunal needed to verify that the nominator was the relevant standard business sponsor, was actively and lawfully operating a business, and that the nominee had held a Subclass 457 visa for at least two years and had been employed in the nominated position for the same duration, with the employment being full-time and undertaken in Australia. The terms and conditions of employment, as well as the nominator's compliance with training obligations and absence of adverse information, were also key considerations.

The Tribunal found that the applicant had provided sufficient evidence to satisfy the requirements of regulation 5.19(3). It was satisfied that the application was compliant in form and fee, and that the nominated position of Marketing Specialist was consistent with the nominee's qualifications and the business's needs, aligning with the ANZSCO description. The Tribunal accepted that the nominee had met the requisite periods of visa holding and employment in the nominated role, and that the employment was full-time and conducted in Australia. The terms and conditions of employment were also deemed to be no less favourable than those provided to Australian citizens or permanent residents for equivalent work. The Tribunal was satisfied that the nominator had fulfilled its training commitments and complied with relevant obligations, and that there was no adverse information known to Immigration that could not be disregarded.

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