GOLDEN AGE CINEMA & BAR PTY LTD (Migration)

This matter concerned an appeal by GOLDEN AGE CINEMA & BAR PTY LTD (the applicant) against the decision of the Tribunal to affirm the refusal of a nomination for a Subclass 457 visa. The core dispute revolved around whether the nominee met the requirements for approval of the nomination under the Temporary Residence Transition stream, specifically as set out in regulation 5.19(3) of the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant's nominee satisfied the criteria stipulated in regulation 5.19(3)(c). This regulation outlines two alternative pathways for meeting the employment requirements: either the nominee must have held one or more Subclass 457 visas for a total period of at least two years and been employed in the nominated position for at least two years within the three years immediately preceding the nomination application, or the nominee must have been identified in a specific type of nomination and employed in that occupation for at least two years within the three years prior to the application.

The Tribunal reasoned that the nominee held a Subclass 457 visa based on a nomination for Accommodation and Hospitality Manager. However, this occupation was not listed in the relevant instrument for the second pathway under regulation 5.19(3)(c)(ii). Consequently, the first pathway under regulation 5.19(3)(c)(i) had to be satisfied. The Tribunal found that the relevant three-year period preceding the nomination application was from 19 April 2013 to 20 April 2016. During this period, the nominee held a Subclass 457 visa from 29 April 2014 to 29 April 2015, and then again from 21 August 2015 until the application date. This amounted to approximately 19 months of holding a 457 visa, which fell short of the required minimum of two years. As this requirement was not met, the Tribunal concluded that regulation 5.19(3)(c) was not satisfied.

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination, as the applicant had not met the necessary criteria under regulation 5.19(3). The applicant had also not sought to satisfy the criteria under the Direct Entry nomination stream, meaning regulation 5.19(4) was also not met.