J & H Business Pty Ltd (Migration)

This matter concerned an appeal by J & H Business Pty Ltd against a decision not to approve its nomination for a Subclass 457 visa for Mr Jun Lee, who was to be employed as a Wall and Floor Tiler. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under section 140GB(2) and section 140GBA of the Migration Act 1958 and Regulation 2.72 of the Migration Regulations 1994.

The Tribunal considered whether the nomination complied with the prescribed process under Regulation 2.72(3), whether the nominator was an approved Standard Business Sponsor under Regulation 2.72(4), and if the nominee was correctly identified under Regulation 2.72(5). It also assessed whether there was any adverse information known to Immigration under Regulation 2.72(9) and whether the nominated occupation, Wall and Floor Tiler (ANZSCO 333411), corresponded to an occupation specified in the relevant legislative instrument, IMMI 17/060, as required by Regulation 2.72(10)(aa). Crucially, the Tribunal had to determine if the position was genuine and if the terms and conditions of employment for the nominee would be no less favourable than those for an Australian citizen performing the same role, as stipulated in Regulation 2.72(10)(c).

The Tribunal found that the applicant had met all procedural requirements for the nomination. It was satisfied that the nominator was a Standard Business Sponsor and that Mr Jun Lee was correctly identified as the nominee. The Tribunal noted that Mr Lee was not a current Subclass 457 visa holder, so certain specific criteria did not apply. Significantly, the Tribunal considered extensive documentary evidence, including financial records and contracts, which demonstrated the applicant's substantial business growth and the complexity of its operations. This evidence, much of which was not available to the original decision-maker, supported the contention that the nominated position of Head Tiler was genuine and required a superior skill set. The Tribunal also had regard to Mr Lee's Associate Degree in Technology (Construction Information), which reinforced his qualifications for the role.

Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision approving the nomination.