ETHNIC CUISINES PTY LTD (Migration)

The Administrative Appeals Tribunal considered an application by Ethnic Cuisines Pty Ltd, trading as Barbeque Nation, for approval of a nomination for a position under the Temporary Residence Transition stream. The dispute concerned whether the nominated employee, Hamid Mushtaq, met the eligibility requirements for this visa stream, specifically regarding the duration of his Subclass 457 visa holding and employment. The Tribunal was tasked with determining if the applicant had satisfied all the criteria stipulated in regulation 5.19(3) of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the nominee, Hamid Mushtaq, had held a Subclass 457 visa for a total period of at least two years within the three years immediately preceding the lodgement of the nomination application, as required by regulation 5.19(3)(c)(i)(A)(I). The applicant had provided documentation indicating that the nominee held a Subclass 457 visa, but the Tribunal found that the total period for which he held this visa was three days short of the required two years. The Tribunal also noted that the applicant had not responded to an invitation to provide updated and current information relevant to the nomination.

The Tribunal's reasoning focused on the strict requirements of regulation 5.19(3)(c)(i)(A)(I), which mandates that the nominee must have held one or more Subclass 457 visas for a total period of at least two years within the three years immediately before the nominator made the application. The Tribunal found that the evidence presented established that the nominee had held the visa for a period of three days less than the required two years. As this was a factual requirement with no discretion afforded in the regulations for such a shortfall, the Tribunal concluded that the applicant had failed to meet this essential criterion for the nomination to be approved.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.