ESSNADEL PTY LTD (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to refuse the applicant's application for approval of a nomination for a Marketing Specialist position under the Temporary Residence Transition stream of the Migration Regulations 1994. The applicant sought to nominate Ms. Jiawei Cui for this position. The delegate's initial refusal was based on the applicant failing to demonstrate it met the training expenditure requirements. The applicant subsequently applied to the Tribunal for a review of this decision.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the nominee had been employed full-time in Australia in the nominated occupation for at least two of the three years preceding the nomination application, and whether the nominee had held one or more Subclass 457 visas for a total period of at least two years within that same three-year period.

The Tribunal reasoned that for the nomination to be approved, all requirements of regulation 5.19(3) must be met. It examined the evidence regarding the nominee's employment and visa status. The nomination was made on 20 May 2017, meaning the relevant three-year period was from 20 May 2014 to 20 May 2017. While the nominee commenced full-time employment on 1 May 2015, she was only granted a Subclass 457 visa on 21 May 2015. Consequently, within the three years preceding the nomination application, the nominee did not hold a Subclass 457 visa for the required total period of at least two years, falling short by one day. The Tribunal found that the nominated occupation was not included in the relevant instrument for an alternative pathway under regulation 5.19(3)(c).

The Tribunal decided to affirm the delegate's decision to refuse the nomination. It concluded that the applicant failed to meet the requirement under regulation 5.19(3)(c)(i)(A)(i) concerning the total period the nominee held a Subclass 457 visa. The Tribunal noted that it was not necessary to make a finding on the training expenditure requirements due to this failure.