Westmead Pty Ltd (Migration)

This matter concerned an application by Westmead Pty Ltd for approval of a nominated position for a visa. The applicant, which operates McDonald's restaurants in Western Australia, identified Ms Marie Francis Lim Amoloria as its nominee for the position of Retail Manager. The core of the dispute was whether the applicant met the requirements for approval of the nomination, specifically under regulation 5.19(4) and the stream-specific requirements of regulation 5.19(5) of the Migration Regulations 1994. The case was heard by P. Maishman, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant satisfied the general requirements for nomination approval under reg 5.19(4) and, crucially, the stream-specific requirements under reg 5.19(5) for the Temporary Residence Transition stream. A key element of reg 5.19(5)(a) is the type of visa the identified person held at the time the nomination application was made. The Tribunal was required to determine if Ms Amoloria's Subclass 457 visa met the criteria stipulated in reg 5.19(5)(a), which outlines specific visa types and the basis on which they must have been granted for the nomination to be approved.

The Tribunal's reasoning focused on the visa held by Ms Amoloria at the time of the nomination application. The applicant conceded that Ms Amoloria held a Subclass 457 visa granted under subclause 457.223(2), which relates to nominations made under a labour agreement. However, for the nomination to be approved under the Temporary Residence Transition stream, reg 5.19(5)(a)(i) requires the Subclass 457 visa to have been granted on the basis of satisfying the criterion in subclause 457.223(4), which pertains to the Standard Business Sponsorship stream. As Ms Amoloria's visa was granted under the labour agreement stream, not the standard business sponsorship stream, this specific requirement of reg 5.19(5)(a) was not met. The Tribunal found that the other alternative requirements in subparagraphs 5.19(5)(a)(ii) to (vi) were also not satisfied.

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