OSTASTAND PTY LTD (Migration)

This matter concerned an application by Ostastand Pty Ltd for approval of a nominated position under the Temporary Residence Transition nomination stream. The applicant sought to nominate a position for a Massage Therapist, ANZSCO 411611, for a person who held a Subclass 457 visa. The core dispute revolved around whether the nominator had met its training commitments as required by the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to consider if the application was compliant, if the nominator was an actively and lawfully operating business, and if the nominated person met the employment and visa tenure requirements. Crucially, the Tribunal had to assess whether the nominator had fulfilled its training commitments or if it was reasonable to disregard this requirement.

The Tribunal found that the application was made in the approved form, accompanied by the prescribed fee, and identified the relevant visa holder and occupation. It was also satisfied that the nominator was an actively and lawfully operating business and had met the criteria regarding overseas business operations. The Tribunal noted that the nominator had invested in a farm and operated multiple clinics, employing a significant number of staff. Regarding the training commitments, the Tribunal considered regulation 5.19(3)(f) and concluded that it was reasonable to disregard the requirement for the nominator to have fulfilled its training commitments. This conclusion was based on the evidence presented regarding the nominator's business activities and investments, which suggested a broader operational context beyond the specific training obligations.

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