Westmead Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a nomination application made by Westmead Pty Ltd, which operates McDonald's restaurants in Western Australia, for the position of Retail Supervisor. The nominee identified was Paola Guerrero Davis. The dispute arose because Ms Davis held a Subclass 457 (Temporary Work (Skilled)) visa granted under the Labour Agreement stream (subclause 457.223(2)) at the time of the nomination application, rather than the Standard Business Sponsorship stream (subclause 457.223(4)) as required for the Temporary Residence Transition stream.

The primary legal issue before the Tribunal was whether the applicant met the general requirements for approval of the nomination under regulation 5.19(4) and, crucially, the stream-specific requirements under regulation 5.19(5) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nominee, Ms Davis, held the correct type of visa at the time of the nomination application, as stipulated by regulation 5.19(5)(a).

The Tribunal's reasoning focused on regulation 5.19(5)(a), which outlines the types of visas a nominee must hold for a nomination relating to the Temporary Residence Transition stream to be approved. The regulation lists several alternatives, including a Subclass 457 visa granted under the Standard Business Sponsorship stream. The evidence before the Tribunal established that Ms Davis's Subclass 457 visa was granted based on a labour agreement, not the standard business sponsorship stream. As this specific requirement of regulation 5.19(5)(a) was not met, and the alternative requirements were also not satisfied, the Tribunal found that the nomination could not be approved.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.