Sheetal Indian Restaurant Pty Ltd (Migration)

This matter concerned a review by the Tribunal of a decision regarding a Temporary Residence Transition nomination. The applicant, Sheetal Indian Restaurant Pty Ltd, sought approval for a nomination for the position of Café or Restaurant Manager. The nominee, Mrs Amandeep Kaur Birl, held a Subclass 457 visa. The core of the dispute revolved around whether the applicant met the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994.

The Tribunal was required to determine if the application for nomination was compliant, as stipulated by regulation 5.19(3)(a). This involved assessing whether the application was in the approved form, accompanied by the prescribed fee, and included the necessary certification regarding conduct contravening section 245AR(1) of the Act. Furthermore, the Tribunal had to ascertain if the nominated occupation corresponded to the occupation held by the nominee on her Subclass 457 visa, specifically requiring the same 4-digit ANZSCO code. The Tribunal also needed to consider regulation 5.19(3)(b), which mandates that the nominator be an actively and lawfully operating business in Australia and the relevant standard business sponsor who last identified the nominee.

In its reasoning, the Tribunal found that the applicant had lodged a compliant application, including the correct form, fee, and certification. It was satisfied that the nominated occupation of Café or Restaurant Manager (ANZSCO 141111) was the same as that performed by the nominee under her Subclass 457 visa, sharing the same 4-digit occupation code. The Tribunal also concluded that the applicant was actively and lawfully operating a business in Australia and was the relevant standard business sponsor. Based on these findings, the Tribunal determined that all requirements of regulation 5.19 were met.

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