MDB Capital Pty Ltd (Migration)

This matter concerned an application by MDB Capital Pty Ltd for approval of a nominated position under the Temporary Residence Transition nomination stream. The applicant sought to nominate a Graphic Designer for employment. The core dispute revolved around whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(3) of the Migration Regulations 1994. The decision was made by Member Mark O'Loughlin.

The legal issues before the Tribunal were whether the application for approval was compliant, whether the nominator met the criteria for being an actively and lawfully operating business, and crucially, whether the nominated employee had been employed full-time in the nominated position for at least two years, as required by regulation 5.19(3)(c)(i)(B). The Tribunal was required to assess if all the conditions stipulated in regulation 5.19(3) were satisfied for the nomination to be approved.

The Tribunal found that the application was made in the approved form, the prescribed fee was paid, and the necessary certifications were included. It was satisfied that the nominator was actively and lawfully operating a business in Australia and had not met specific criteria that would disqualify them as a standard business sponsor. Critically, the Tribunal determined that the nominated employee had been employed full-time in the position for at least two years, fulfilling the requirement under regulation 5.19(3)(c)(i)(B). The Tribunal also found that the terms and conditions of employment were no less favourable than those provided to an Australian citizen or permanent resident for equivalent work.

Based on these findings, the Tribunal concluded that the applicant met all the requirements of regulation 5.19 for the approval of the nominated position. Consequently, the Tribunal set aside the decision under review and substituted a decision approving the nomination.