The Indigo Olive Pty Ltd ATF The Indoki Family Trust (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a nomination under the Temporary Residence Transition stream. The applicant was The Indigo Olive Pty Ltd ATF The Indoki Family Trust, and the dispute centred on the employer's nomination of a position for a visa application. The Tribunal was tasked with determining whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(3) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had satisfied all the criteria stipulated in regulation 5.19(3) for the approval of the employer nomination. This involved assessing whether the application was made in the approved form, identified a qualifying visa holder, and nominated an occupation listed in ANZSCO with the correct unit group code. Crucially, the Tribunal also had to consider whether the nominator was actively and lawfully operating a business, had met training requirements, and had a satisfactory record of compliance with relevant laws.

The Tribunal considered extensive documentary evidence, including employment contracts, financial statements, business activity statements, and statutory declarations regarding employee training. It also heard oral evidence from Mr. Scobie, who described the business operations and training emphasis, and from the nominee regarding their employment history. The Tribunal found that the application met the formal requirements of regulation 5.19(3)(a), including the correct visa subclass and occupation identification. Furthermore, it was satisfied that the nominator was operating a lawful business and that the nominee had held the requisite visas and been employed in the nominated position for the specified periods. The Tribunal concluded that the applicant had fulfilled the training requirements, or that it was reasonable to disregard any perceived shortfall in this regard, and that there was no adverse information known to Immigration that could not be disregarded.

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