JT King Finance Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the approval of a nominated position for migration purposes. The applicant sought to have the original decision, which refused to approve the nomination, set aside. The core of the dispute revolved around whether the identified person for the nominated Finance Broker position met the mandatory licensing and registration requirements stipulated by migration regulations.

The Tribunal was required to determine if the nominated person, Mr. Viet Dung Dao, satisfied the general requirements for nomination approval under regulation 5.19(4) and the specific requirements for the Temporary Residence Transition stream under regulation 5.19(5). Specifically, the Tribunal had to assess whether the application was made in accordance with the prescribed form and requirements, and crucially, whether Mr. Dao held, or was eligible to hold, the necessary licence or registration to perform the duties of a Finance Broker in New South Wales at the time of the application, as mandated by regulation 5.19(4)(c).

The Tribunal found that the application met the general requirements, including being on the approved form, identifying the position, person, occupation, subclass, and stream, and being accompanied by the correct fee and certification. However, the original delegate had refused the application on the basis that Mr. Dao did not provide sufficient evidence of holding or being eligible for the relevant Australian Securities and Investments Commission (ASIC) licence to act as a Finance Broker. Upon review, and considering additional evidence and submissions presented by the applicant, the Tribunal concluded that Mr. Dao was indeed carrying out the tasks of a Mortgage Broker under the Finance Broker occupation code. The Tribunal accepted that finance and mortgage brokers are regulated by ASIC and are required to hold a credit licence or be authorised under the National Consumer Credit Protection Act 2009.

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