IBSG AUSTRALIA PTY LTD (Migration)

This matter concerned an application by IBSG Australia Pty Ltd for approval of a nominated position under the Temporary Residence Transition stream of the Migration Regulations 1994. The applicant sought to nominate a Telecommunications Network Engineer for a position. The decision under review had refused to approve the nomination.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for the approval of the nomination as set out in regulation 5.19(3) of the Migration Regulations 1994. This involved determining whether the application was compliant, whether the nominator was actively and lawfully operating a business in Australia, and whether the nominee met the employment and visa tenure requirements. A specific point of contention was whether the nominator had fulfilled its training obligations or if it was reasonable to disregard this requirement.

The Tribunal found that the application was made in the approved form, accompanied by the prescribed fee, and identified the relevant nominee and occupation. It was satisfied that the nominator, IBSG Australia, was actively and lawfully operating a business in Australia. Crucially, the Tribunal determined that it was reasonable to disregard the nominator's training obligations under regulation 5.19(3)(f)(i), as the evidence suggested that these obligations were not applicable or could be overlooked in the circumstances. The Tribunal was satisfied that all other requirements of regulation 5.19(3) were met.

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