1518125 (Migration)

This matter concerned a review by the Administrative Appeals Tribunal (AAT) of a decision relating to a Subclass 457 visa application. The primary issue before the Tribunal was whether the visa applicant met the requirements of clause 457.223(4)(d) of Schedule 2 to the Regulations.

The Tribunal was required to determine two specific aspects of clause 457.223(4)(d): firstly, whether the applicant's intention to perform the nominated occupation was genuine, and secondly, whether the position associated with the nominated occupation was genuine. The Tribunal considered evidence previously presented in a related nomination refusal review application.

In its reasoning, the Tribunal found that the wording of clause 457.223(4)(d)(ii) regarding the genuineness of the nominated position was identical to that in regulation 2.72(10)(f) concerning the approval of nominations. Having made a positive finding on this aspect in the related nomination review, the Tribunal relied on the same evidence and assessment to conclude that the nominated occupation was genuine and therefore met clause 457.223(4)(d)(ii). Furthermore, the Tribunal was satisfied that the applicant had been working in the nominated position for nearly two years, leading to the conclusion that the applicant's intention to perform the occupation was genuine, thus satisfying clause 457.223(4)(d)(i).

Consequently, the Tribunal found that clause 457.223(4)(d) as a whole was met. The Tribunal remitted the application for a Temporary Business Entry (Class UC) visa for reconsideration by the Minister, with a direction that the visa applicant meets the criteria under clause 457.223(4)(d).