Phase 33 Pty Ltd (Migration)

This matter concerned an application by Phase 33 Pty Ltd for approval of a nominated position under the Temporary Residence Transition stream. The applicant sought to nominate Mr Zamry Bin Kader Meerah for the occupation of Chef. The core dispute revolved around whether the applicant met the various requirements stipulated in regulation 5.19(3) of the Migration Regulations 1994 for the approval of such a nomination. The decision was made by Member Peter Emmerton of the Tribunal.

The Tribunal was required to determine if Phase 33 Pty Ltd had satisfied all the criteria for approving the nomination. This involved assessing whether the application was made in the approved form, whether the nominee held a relevant Subclass 457 visa, and whether the nominated occupation matched the occupation carried out by the visa holder, specifically aligning with the same 4-digit ANZSCO unit group code. Furthermore, the Tribunal needed to consider the nominator's business operations, the nominee's employment history and conditions, and the nominator's compliance with training commitments and workplace relations laws.

In reaching its decision, the Tribunal meticulously examined the evidence presented, including the application form, departmental records, and the nominee's employment details. It found that the application met the formal requirements of regulation 5.19(3)(a), including the correct form, fee, and identification of the nominee and occupation. The Tribunal was satisfied that Mr Meerah held a valid Subclass 457 visa and was indeed performing the duties of a Chef (ANZSCO 351311), even noting his subsequent promotion to Head Chef. The Tribunal concluded that all requirements of regulation 5.19(3) were met.

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