The Trustee For GNH Harmony Family Trust (Migration)

The Administrative Appeals Tribunal considered a dispute between The Trustee For GNH Harmony Family Trust (the nominator) and the Department of Immigration concerning the approval of a nomination for a Chef (ANZSCO 351311) under the Temporary Residence Transition stream. The core of the dispute revolved around whether GNH Harmony met the requirements of regulation 5.19(3) of the Migration Regulations 1994 for approving the nomination.

The Tribunal was required to determine if GNH Harmony satisfied all the criteria stipulated in regulation 5.19(3). Specifically, this involved assessing whether the application was compliant, if GNH Harmony was an actively and lawfully operating business in Australia, and crucially, whether the nominated employee had met the requirements for previous employment and visa holding, including the ability to sustain employment for at least two years. The Tribunal also needed to consider the terms and conditions of employment and the nominator's compliance with training and workplace relations laws.

The Tribunal found that GNH Harmony had met the requirements of regulation 5.19(3). It was satisfied that the application was in the approved form, accompanied by the prescribed fee, and that GNH Harmony had certified it had not engaged in conduct contravening section 245AR(1) of the Act. The Tribunal accepted evidence that the nominated employee, Mr. Kim, had not experienced a gap in employment and that GNH Harmony was an actively and lawfully operating business. Furthermore, the Tribunal was satisfied that Mr. Kim had held the necessary visas and been employed in the nominated occupation for the requisite period, and that the proposed employment met the specified conditions.

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