The Trustee for the Elmazi Family Trust (Migration)

This matter concerned an application by The Trustee for the Elmazi Family Trust for approval of a nomination for a position. The applicant sought to have the decision under review, which had not approved the nomination, set aside. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under section 140GB(2) of the Migration Act 1958 (Cth) and regulation 2.72 of the Migration Regulations 1994 (Cth).

The legal issues before the Tribunal included whether the applicant was an approved sponsor, whether the nomination met the requirements of regulation 2.72, including the payment of any applicable nomination training contribution charge, and whether section 140GBA was satisfied for nominations made from 23 November 2013. Specifically, the Tribunal had to consider evidence relating to the business's registration, operations, and structure, the nominee's employment contract, labour market testing, and a certification regarding contravention of section 245AR(1). The Tribunal also had to assess whether there was any adverse information known to Immigration about the applicant or associated persons, and whether the nominated occupation and its code corresponded to specified instruments, along with the terms and conditions of employment for the nominee.

The Tribunal's reasoning focused on assessing each of the applicable criteria under regulation 2.72. It found that the applicant had provided sufficient evidence regarding the business's identity and operations, including details of its ABN and trading names. The Tribunal was satisfied that the nominated occupation of Chef (ANZSCO 351311) was listed in the relevant instrument (IMMI 17/040). Furthermore, it found no adverse information known to Immigration concerning the applicant or associated persons, and that 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 also considered the labour market testing conducted and the certification provided, finding them to be satisfactory.

Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision approving the nomination.