J AND N BUSINESS SERVICES PTY LTD (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the approval of a nominated position under the Temporary Residence Transition nomination stream. The applicant was J AND N BUSINESS SERVICES PTY LTD, and the nominated person was Mr Dorian Menard, who held a Subclass 457 visa as a Marketing Specialist. The core of the dispute revolved around whether the applicant met the requirements for approval of the nomination as stipulated in regulation 5.19(3) of the Migration Regulations 1994.

The Tribunal was required to determine if the nomination application was compliant, if the nominator met the criteria for a standard business sponsor, and if the previous employment of the nominee satisfied the conditions for the Temporary Residence Transition stream. Specifically, the Tribunal had to assess whether the application was in the approved form, accompanied by the correct fee, and included the necessary certification regarding conduct contravening s.245AR(1). It also needed to verify that the nominator was actively and lawfully operating a business in Australia and had not met certain criteria in their most recent sponsorship approval. Furthermore, the Tribunal had to consider whether the nominee had been employed full-time in Australia in the nominated position for at least two of the three years preceding the nomination application.

The Tribunal found that the application met the requirements of regulation 5.19(3)(a), having been made in the approved form, with the prescribed fee paid, and containing the required certification. It was also satisfied that the nominator met the criteria under regulation 5.19(3)(b), being an active and lawful business operator and not having met specific exclusionary criteria in their most recent sponsorship approval. The Tribunal concluded that the nominee's employment history satisfied the conditions outlined in regulation 5.19(3)(c), demonstrating sufficient full-time employment in Australia in the nominated occupation.

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