Swanstar Nominees Pty Ltd ATF Creasey Family Trust (Migration)

This matter concerned an application by Swanstar Nominees Pty Ltd ATF Creasey Family Trust for approval of a nominated position for a Retail Supervisor. The applicant, which operates several 24-hour full-service McDonald's stores, sought to nominate Mr Dinno Aberin Canlas for the position. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the general requirements for approval of the nomination under regulation 5.19(4) and the specific requirements for the Temporary Residence Transition (TRT) stream under regulation 5.19(5) of the Migration Regulations 1994.

The primary legal issue was whether the nominated person, Mr Canlas, held a visa of a prescribed kind at the time the nomination application was made, as required by regulation 5.19(5)(a). The applicant conceded that Mr Canlas held a Subclass 457 visa granted under a labour hire agreement, which was valid until 5 September 2015. The applicant also submitted that subsequent changes to labour agreement policies and regional definitions by the government had impacted their ability to make a valid nomination application.

The Tribunal found that the applicant had not satisfied the requirements of regulation 5.19(5)(a). The applicant's nominee held a Subclass 457 visa that had expired well before the nomination application was made, and the subsequent attempts to secure a new labour agreement were unsuccessful due to policy changes and the business no longer being located in a 'regional' area. Consequently, the Tribunal was not satisfied that the applicant met the necessary regulatory requirements for the approval of the nomination.

The Tribunal affirmed the decision under review to refuse the nomination.