L & K Superior Co Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning L & K Superior Co Pty Ltd's nomination of a position under the Temporary Residence Transition stream of the Employer Nomination Scheme visa subclass 186. The core of the dispute revolved around whether the nominated position and the applicant's circumstances met the requirements stipulated in regulation 5.19 of the Migration Regulations 1994.

The Tribunal was required to determine if L & K Superior Co Pty Ltd had satisfied all the general requirements for the approval of a nominated position under regulation 5.19(4), as well as the specific requirements for the Temporary Residence Transition stream under regulation 5.19(5). This involved assessing various criteria, including the application's compliance with form and content requirements, the absence of adverse information concerning the nominator, and satisfactory compliance with employment laws. Crucially, the Tribunal also had to consider whether the terms and conditions of employment for the nominated person would exclude the possibility of extending their employment period, as stipulated in regulation 5.19(5)(m).

The Tribunal found that the application met the general requirements of regulation 5.19(4), including being made in the approved form, identifying the position and person, and demonstrating compliance with employment laws and training contribution charges. Regarding the specific requirements for the Temporary Residence Transition stream, the Tribunal was satisfied that the identified person held an appropriate visa at the time of application and that the occupation matched the previously granted visa. The Tribunal also considered the employment duration and the nominator's business capacity. Ultimately, the Tribunal determined that the terms and conditions of employment did not include an express exclusion of the possibility of extending the period of employment, thereby satisfying regulation 5.19(5)(m).

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