THE DENTAL SOLUTION AUSTRALIA PTY LTD (Migration)

This matter concerned an application by THE DENTAL SOLUTION AUSTRALIA PTY LTD for the approval of a nominated position under the Temporary Residence Transition nomination stream. The dispute before the Tribunal was whether the applicant had met all the requirements for approval of the nomination, as set out in regulation 5.19 of the Migration Regulations 1994. The decision was made by Member Mary-Ann Cooper.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the criteria stipulated in regulation 5.19(3) for the approval of an employer nomination. This involved assessing whether the application was compliant, the status of the nominator as an actively and lawfully operating business, and whether the nominee met the employment and visa tenure requirements. Additionally, the Tribunal had to consider whether the nominator had fulfilled its training commitments and obligations, and if there was any adverse information concerning the nominator.

The Tribunal reasoned that the application met the requirements of regulation 5.19(3)(a) as it was made in the approved form, accompanied by the prescribed fee, and identified a nominee holding a Subclass 457 visa in the occupation of Dental Technician, which shared the same 4-digit ANZSCO unit group code as the occupation carried out by the nominee. Furthermore, the nominator was confirmed to be the relevant standard business sponsor, actively and lawfully operating a business in Australia, and had not had its most recent sponsorship approval based on specific excluded criteria, thus satisfying regulation 5.19(3)(b). The Tribunal found that the nominee had held Subclass 457 visas for the requisite period and had been employed full-time in the nominated position in Australia, fulfilling the conditions under regulation 5.19(3)(c)(i). Crucially, the Tribunal was satisfied that the nominator had met its training commitments and obligations under regulation 5.19(3)(f), and that there was no adverse information known to Immigration about the nominator, satisfying regulation 5.19(3)(g).

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