S Zhang & Y Zhang (Migration)

This matter concerned an appeal by S Zhang and Y Zhang (the applicants) against a decision regarding an employer nomination for the Temporary Residence Transition stream. The Tribunal was required to determine whether the nominated position of ICT Customer Support Officer met the requirements for approval under regulation 5.19(3) of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicants had satisfied all the criteria stipulated in regulation 5.19(3) for the approval of the nominated position. This involved assessing whether the application was made in the approved form, whether the prescribed fee was paid, and whether the nominator was a lawfully operating business that had previously sponsored the nominee. The Tribunal also had to consider the nominee's employment history, the terms and conditions of employment, and the nominator's compliance with training commitments and workplace relations laws.

The Tribunal considered extensive evidence provided by the applicants, including company records, financial statements, payroll records, and an updated contract of employment. 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 also satisfied that the nominator was the relevant standard business sponsor, actively and lawfully operating in Australia, and met the criteria under regulation 5.19(3)(b). Furthermore, the Tribunal was satisfied that the nominee met the employment and tenure requirements under regulation 5.19(3)(c) and that the proposed employment met the conditions outlined in regulations 5.19(3)(d) and (e). Crucially, the Tribunal found that the nominator had fulfilled its training commitments or that it was reasonable to disregard any non-compliance, as per regulation 5.19(3)(f).

Based on its findings, the Tribunal concluded that the applicants had met the requirements of regulation 5.19 for the approval of the nomination. Consequently, the Tribunal set aside the original decision and substituted it with a decision approving the nomination.