SINGH & SONS PTY LTD ATF THE SAMSHER SINGH FAMILY TRUST (Migration)

This matter concerned an application by SINGH & SONS PTY LTD ATF THE SAMSHER SINGH FAMILY TRUST (the applicant) for approval of a nomination under the Temporary Residence Transition stream. The applicant sought to nominate Mr Shailender Kumar for the occupation of cook. The core dispute revolved around whether the applicant met all the requirements for the nomination to be approved, particularly in light of changes to migration legislation. The decision was made by Amanda Ducrou of the Tribunal.

The legal issues before the Tribunal were whether the applicant's nomination met the requirements of regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the application was compliant, if the nominator was a lawfully operating business in Australia and met certain sponsorship criteria, and if the nominee met the employment and visa tenure requirements. A key consideration was the impact of repealed provisions concerning sponsorship obligations for training.

The Tribunal reasoned that the application was made in the approved form, with the prescribed fee, and identified the nominee and occupation correctly. It was satisfied that the nominee held a Subclass 457 visa and that the nominated occupation as a cook (ANZSCO 351411) matched the occupation held under the visa, sharing the same 4-digit occupation unit group code. The Tribunal found that the nominator was the relevant standard business sponsor and was actively and lawfully operating a business in Australia, providing extensive financial and business documentation to support this. Crucially, the Tribunal noted that the sponsorship obligation to provide training, previously a requirement, had been repealed by migration legislation amendments. The Tribunal was satisfied that the applicant had provided evidence of its financial capacity to employ the nominee for at least two years.

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