THE HMK FAMILY TRUST (Migration)

This matter concerned an application by THE HMK FAMILY TRUST for the approval of a nominated position for a Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominated occupation, that of a Cook, and the associated employment terms and conditions, satisfied the requirements of Regulation 2.72 of the Migration Regulations 1994. This included assessing whether the nomination was made in accordance with the prescribed process, whether the nominator was a standard business sponsor, whether the nominee was correctly identified, and whether the nominated occupation was specified in the relevant instrument, with particular attention to the exclusion of fast food or takeaway food services. Furthermore, the Tribunal had to consider whether the terms and conditions of employment offered to the nominee were no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work.

The Tribunal found that the applicant had complied with the procedural requirements for making the nomination, including payment of the prescribed fee and providing necessary details such as the occupation code and location. It was satisfied that THE HMK FAMILY TRUST was an approved standard business sponsor. Crucially, the Tribunal examined the evidence, including an organisational chart, financial statements, job description, and photographs of the restaurant, to conclude that the business did not operate a fast food or takeaway food service, thereby satisfying the criteria for the nominated occupation of Cook. The Tribunal also found that the terms and conditions of employment were no less favourable than those for an Australian equivalent, considering the definition of "earnings" under the regulations.

Consequently, the Tribunal set aside the previous decision not to approve the nomination and substituted a decision that the nomination be approved.