1507885 (Migration)

This matter concerned an application to approve a nomination for a Subclass 457 visa. The applicant sought to nominate an occupation, and the Tribunal was required to determine whether the applicant met the criteria for approval of this nomination under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had satisfied all the applicable requirements stipulated in regulations 2.72 and 2.73 of the Migration Regulations 1994 for the approval of a nomination. This involved assessing whether the nomination complied with the prescribed process, whether the nominator was a standard business sponsor or party to a work agreement, the proper identification of the nominee, and whether the nominated occupation and its associated details met the specified criteria, including alignment with the ANZSCO code and the absence of adverse information.

The Tribunal reasoned that the applicant had met the requirements of regulation 2.72(3) by making the nomination in accordance with the process set out in regulation 2.73, including using the approved form and fee, and identifying the nominated visa applicant and the location of employment. It found that the nominator was a standard business sponsor, satisfying regulation 2.72(4). The Tribunal was satisfied that the nominee was correctly identified as per regulation 2.72(5) and that certain regulations concerning existing Subclass 457 visa holders did not apply as the nominee was not a current holder. Furthermore, the Tribunal found that the information provided about the nominated occupation met the requirements of regulation 2.72(8A) and that no adverse information was known to Immigration, satisfying regulation 2.72(9). Crucially, the Tribunal determined that the nominated occupation, 'Specialist Manager – nec', corresponded to an occupation specified in instrument IMMI 16/060, thereby meeting regulation 2.72(10)(aa), and that the tasks of the position were consistent with the ANZSCO description for this occupation.

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