1502456 (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision by the Department of Immigration to refuse to approve an employer's nomination for a position under the Temporary Residence Transition stream. The applicant sought to have the refusal decision set aside and a decision substituting approval of the nomination substituted.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nominated occupation correctly matched the occupation for which the Subclass 457 visa holder had been granted, and if all other prescribed criteria under regulation 5.19(3) were satisfied.

The Tribunal noted that the Department's refusal was based on an incorrect identification of the nominated occupation, which the applicant contended was an error by the Department. Despite a subsequent, separate nomination application for the same position having been approved, the Tribunal was required to review the original refusal. The Tribunal found that the application was made in the approved form, the prescribed fee was paid, and the requirement for written certification regarding conduct contravening s.245AR(1) did not apply to this application. Crucially, the Tribunal accepted the applicant's submission that the nominated occupation was intended to be "dental technician" and that the reference to "Human Resources Manager" was an error, meaning the occupation identified in the nomination had the same 4-digit ANZSCO unit group code as the occupation for which the visa was granted. The Tribunal was satisfied that all other requirements of regulation 5.19(3) were met.

The Tribunal set aside the decision under review and substituted a decision approving the nomination.