MOKISHIDE PTY LTD (Migration)

This matter concerned an application by Mokishide Pty Ltd, trading as StudioMKZ, for approval of a nomination under the Temporary Residence Transition stream of the Subclass 457 visa program. The applicant, an interior design business established in 2006, sought to nominate Ms Mihyun Ju, who held a Subclass 457 visa and had been employed as an Interior Designer since July 2014. The core dispute revolved around whether the applicant met all the requirements stipulated in regulation 5.19(3) of the Migration Regulations 1994 for the nomination to be approved.

The court was required to determine if the applicant satisfied the various criteria for approval of the nomination under regulation 5.19(3). This included assessing whether the application was made in the approved form, identified a suitable nominee and occupation, and whether the nominator was a standard business sponsor actively and lawfully operating a business in Australia. Crucially, the court had to consider whether the nominee had held the requisite visas and been employed in the nominated occupation for the specified periods, and whether the proposed employment offered terms and conditions no less favourable than those provided to Australian citizens or permanent residents performing equivalent work.

The Tribunal found that the applicant had met the requirements of regulation 5.19(3). It was satisfied that the application was compliant in form and fee, and correctly identified the nominee and her occupation as an Interior Designer (ANZSCO 232511), which matched the occupation held under her Subclass 457 visa. The Tribunal also concluded that the applicant was a standard business sponsor actively operating its business and that the nominee had met the employment and visa tenure requirements. Furthermore, the Tribunal was satisfied that the proposed employment terms and conditions for the nominee would be no less favourable than those for an Australian equivalent, and that the nominator had a satisfactory record of compliance.

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