HUI LAU SHAN HEALTHY DESSERT PTY LTD (Migration)

This matter concerned an appeal by HUI LAU SHAN HEALTHY DESSERT PTY LTD against a decision to refuse the approval of a nomination. The decision was reviewed by Member Karen Synon of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the approval of a nomination under the Migration Regulations 1994, specifically concerning the identification of the nominee. The Tribunal was required to determine if Regulation 2.72(5) mandated the identification of a specific visa holder, or proposed applicant, who would work in the nominated occupation at the time of the nomination's lodgement, and whether a change of nominee was permissible without a new nomination.

The Tribunal reasoned that Regulation 2.72(5) requires the decision maker to be satisfied that the sponsor has identified the specific individual who will work in the nominated occupation. The wording of the regulation, particularly "identified in the nomination," read in conjunction with other provisions such as Regulation 2.73(2) and 2.73(4A)(a), indicated that the nominee identified at the time of lodging the nomination application must be the same person at the time of the decision. This interpretation aligned with Departmental policy, which stipulates that if a change of nominee is required, a new nomination application must be lodged. Consequently, the Tribunal found that the applicant had not met this criterion.

The Tribunal affirmed the decision under review to refuse the nomination.