The Trustee for SM & SJ Family Discretionary Trust (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a review of a decision concerning a nomination under the Temporary Residence Transition stream. The applicant was The Trustee for SM & SJ Family Discretionary Trust, and the dispute centred on whether the nomination for a Cook position met the requirements of regulation 5.19(3) of the Migration Regulations 1994. The Tribunal, presided over by Member Phoebe Dunn, was tasked with determining the validity of the nomination.

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 nomination. This involved assessing whether the application was compliant, the nominator was an actively and lawfully operating business, and crucially, whether the nominee met the employment and training requirements for the Cook occupation under the Temporary Residence Transition stream. The Tribunal also had to consider the nominator's compliance with training benchmarks and any adverse information.

The Tribunal's reasoning focused on a detailed examination of the evidence against the requirements of regulation 5.19(3). It found that the application was made in the approved form, accompanied by the prescribed fee, and correctly identified the nominee and the occupation of Cook, which matched the nominee's previous Subclass 457 visa occupation. The Tribunal was satisfied that the nominator was actively and lawfully operating a business, a supported residential aged care facility. Crucially, the Tribunal found that the nominee had worked full-time in the nominated position for at least two years, met the training requirements (Training Benchmark B), and the nominator had the financial capacity to employ the nominee for at least two years.

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