VIKING SAUNA PTY LTD (Migration)

This matter concerned an application for approval of a nomination of a position under the Temporary Residence Transition stream, brought before the Tribunal by Viking Sauna Pty Ltd. The applicant sought to have a prior decision reviewed, which had not approved the nomination. The core of the dispute revolved around whether the applicant met the specific requirements for such a nomination as stipulated in regulation 5.19(3) of the Migration Regulations 1994.

The Tribunal was required to determine if the nominating business, Viking Sauna Pty Ltd, was actively and lawfully operating, and if the nominee met the criteria for employment and contribution to the business. Specifically, the court needed to assess whether the nominee had held the relevant visa for the required period and had been employed in the nominated position for at least two years within the three years preceding the application, with that employment being full-time and undertaken in Australia. Furthermore, the Tribunal had to consider the future employment prospects for the nominee, ensuring the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents in equivalent roles.

In reaching its decision, the Tribunal considered the evidence presented regarding Viking Sauna Pty Ltd's registration, business activities, and employee structure, including permanent residents, temporary visa holders, and sub-contractors. It also examined the duties and qualifications of the nominee, Ms. Kwok, and the process by which she was employed as a Marketing Specialist. The Tribunal found that the business was actively operating and that the nominee had been employed full-time since April 2015. Applying the provisions of regulation 5.19(3), the Tribunal was satisfied that all the necessary requirements for the approval of the nomination had been met, including the duration of visa holding and employment, the full-time nature of the role, and the genuine need for the position.

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