KASHMIR TRANSPORT PTY LTD (Migration)

The Administrative Appeals Tribunal considered a dispute between Kashmir Transport Pty Ltd and the Department of Home Affairs concerning a nomination for the Temporary Residence Transition (TRT) stream. The nominator, a trucking company, sought approval for a Customer Service Manager position. The Department had previously refused nominations for similar roles, citing adverse information and a sanction against the nominator as an approved sponsor, although this bar was no longer effective.

The Tribunal was required to determine whether the nominator met the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the court needed to assess if the nominator was actively and lawfully operating a business in Australia, if there was any adverse information known to the Department about the nominator or associated persons, and if the terms and conditions of employment for the nominated position would be no less favourable than those provided to an Australian citizen or permanent resident for equivalent work.

The Tribunal reasoned that while there had been previous refusals and adverse information, the sanction against the nominator was no longer in effect. The company had undergone a restructure, transferring operations and employees to associated entities to meet banking requirements for larger projects. The Tribunal found that the nominator remained actively and lawfully operating its business, retaining core assets and expertise, and providing services to the restructured entities. Crucially, the Tribunal was satisfied that the terms and conditions of employment for the Customer Service Manager role would be no less favourable than those offered to local employees, and that there was no adverse information that could not be disregarded.

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