Hong Ngoc Enterprises Pty Ltd (Migration)

This matter concerned an application by Hong Ngoc Enterprises Pty Ltd for approval of a nominated position under the Temporary Residence Transition stream of the Migration Regulations 1994. The applicant sought to have the nomination of Mr Thanh Luan Nguyen, a Baker, approved. The core of the dispute revolved around whether the nominator had met its training commitments and obligations, specifically concerning Training Benchmark B, and whether it was reasonable to waive these requirements given the circumstances of the business.

The Tribunal was required to determine if the application for approval of the nominated position met all the requirements set out in regulation 5.19(3) of the Migration Regulations 1994. This involved assessing whether the application was compliant, the status of the nominator as an actively and lawfully operating business, and crucially, whether the nominator had fulfilled its training commitments or if it was reasonable to disregard those obligations. The Tribunal also considered the nominee's visa status and the identified occupation against the requirements of the regulations.

The Tribunal found that the application was made in the approved form, accompanied by the prescribed fee, and identified the nominee and occupation correctly, satisfying regulation 5.19(3)(a). It also determined that the nominator was an actively and lawfully operating business, a family-run bakery established in the 1980s, and had not met certain criteria for overseas business operations in its most recent sponsorship approval, thus meeting regulation 5.19(3)(b). Critically, the Tribunal considered the nominator's substantial contribution to a KANGAN scholarship fund, deeming it reasonable to disregard the specific training requirements under regulation 5.19(3)(f)(i) in light of this contribution and the nature of the small family business.

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