M M & K M Pty Ltd (Migration)

This matter concerned an appeal by M M & K M Pty Ltd against a decision regarding an employer nomination for a Cook position under the Temporary Residence Transition stream. The core of the dispute revolved around whether the nominator, M M & K M Pty Ltd, met the financial capacity requirements to maintain the nominee’s full-time salary for at least two years, a crucial element for the approval of the nominated position. The decision was heard by Michelle East.

The legal issues before the Tribunal were whether the applicant, M M & K M Pty Ltd, satisfied the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the application was compliant, if the nominator was an actively and lawfully operating business that met specific sponsorship criteria, and if the nominee had the requisite previous employment history in Australia. The Tribunal also implicitly considered whether the nominator had the financial capacity to employ the nominee full-time for at least two years, and whether the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents.

The Tribunal found that the nomination application was made in the approved form, with the prescribed fee paid, and included the necessary certification regarding conduct contravening s.245AR(1). It was satisfied that the nominator was the relevant standard business sponsor, actively and lawfully operating a business in Australia, and had not met certain exclusionary criteria in its most recent sponsorship approval. Furthermore, the Tribunal was satisfied that the nominee met the previous employment requirements under regulation 5.19(3)(c). Based on these findings, the Tribunal concluded that the applicant met all the requirements of regulation 5.19 for the approval of the nomination.

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