EMPIRE HOSTELLING PTY LTD (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a dispute between EMPIRE HOSTELLING PTY LTD and the Department of Home Affairs concerning a nomination for a Subclass 457 visa under the Temporary Residence Transition stream. The core of the dispute revolved around whether the applicant, EMPIRE HOSTELLING PTY LTD, met the specific requirements for approving the nomination, particularly concerning the terms and conditions of employment for the nominated position.

The Tribunal was required to determine if the nomination application complied with the requirements of Regulation 5.19 of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the application was in the approved form, accompanied by the prescribed fee, and identified the relevant person and occupation correctly. Furthermore, it needed to verify that the nominator was an actively and lawfully operating business in Australia and had not met certain criteria in their most recent sponsorship approval. The Tribunal also had to consider the nominee's previous employment history and the terms and conditions of the proposed employment.

The Tribunal found that the application met the formal requirements, including being in the approved form, having the correct fee, and identifying the nominee and occupation accurately, with the occupation code aligning with ANZSCO. It was also satisfied that the nominator was a standard business sponsor actively operating in Australia and had not met the excluded criteria for their most recent sponsorship approval. Crucially, the Tribunal determined that the terms and conditions of employment for the nominated position would be no less favourable than those provided to an equivalent Australian citizen or permanent resident, a key requirement under Regulation 5.19(3)(e).

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