GURU KIRPA (QLD) PTY LTD (Migration)

This matter concerned an application by GURU KIRPA (QLD) PTY LTD for approval of a nominated position under the Temporary Residence Transition stream. The applicant sought to nominate a Cook (ANZSCO 351411) for a position within its business. The core dispute revolved around whether the applicant met the requirements for approval of this nomination as set out in regulation 5.19(3) of the Migration Regulations 1994. The decision was made by Alan McMurran, Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant had satisfied all the requirements stipulated in regulation 5.19(3) for the approval of the nominated position. This included assessing whether the application was made in the approved form, whether the nominee held a relevant Subclass 457 visa, whether the nominated occupation matched the nominee's visa occupation, and whether the nominator was actively and lawfully operating a business in Australia. Further considerations included the nominee's employment history and the terms and conditions of the proposed employment, as well as the nominator's compliance with training requirements and any adverse information.

The Tribunal's reasoning focused on a detailed examination of the evidence against the criteria in regulation 5.19(3). It found that the applicant had satisfied the procedural requirements of the application, including using the approved form and paying the prescribed fee. The Tribunal was satisfied that the nominee held the requisite Subclass 457 visa and that the nominated occupation of Cook was consistent with the nominee's qualifications and employment history with the applicant. Crucially, the Tribunal determined that the applicant was actively and lawfully operating a business and that the proposed employment terms met the necessary standards, including being no less favourable than those offered to Australian citizens or permanent residents.

Ultimately, the Tribunal concluded that the applicant had met all the requirements of regulation 5.19 for the approval of the nomination. Accordingly, the Tribunal set aside the previous decision under review and substituted a decision approving the nomination.