PUNJAB DELIGHT PTY LTD (Migration)

This matter concerned an application by Punjab Delight Pty Ltd for approval of a nominated position under the Temporary Residence Transition nomination stream. The applicant operates an Indian restaurant and had sponsored Mrs Paramjit Kaur for a Subclass 457 Visa, who had been employed as a Cook since April 2015. The core dispute revolved around whether the applicant met the financial capacity and other requirements stipulated by regulation 5.19(3) of the Migration Regulations 1994 for the nomination to be approved. The decision was made by Member Karen McNamara.

The legal issues before the Tribunal were whether the applicant had satisfied all the requirements of regulation 5.19(3) for the approval of the nominated position. Specifically, the Tribunal was required to determine if the application was compliant, if the nominated person held the requisite visa, if the nominated occupation matched the visa occupation and had the same four-digit ANZSCO code, and if the nominator was actively and lawfully operating a business. Furthermore, the Tribunal had to assess whether the nominee had met the employment duration and full-time employment criteria within the specified timeframe, and if the proposed employment terms and conditions were no less favourable than those offered to Australian citizens or permanent residents.

The Tribunal's reasoning focused on assessing each limb of regulation 5.19(3) against the evidence presented. It found that the application was made in the approved form, accompanied by the prescribed fee, and included the necessary certification. The Tribunal was satisfied that Mrs Kaur held a Subclass 457 visa granted on the basis of satisfying clause 457.223(4) of Schedule 2, and that her nominated occupation as a Cook (ANZSCO 351411) matched her visa occupation and shared the same four-digit code. The Tribunal also confirmed that the applicant was actively and lawfully operating its business. Crucially, the Tribunal was satisfied that the nominee had been employed full-time in the nominated position for the required period, meeting the criteria under subregulation 5.19(3)(c)(i).

Having considered all the evidence and submissions, the Tribunal concluded that the applicant met the requirements of regulation 5.19(3). Consequently, the Tribunal set aside the original decision and substituted a decision approving the nomination.