1602597 (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, specifically a Subclass 457 visa. The applicant sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The AAT had considered whether the applicant met certain criteria for the visa, including the requirement for an approved nomination and the genuineness of the nominated position.

The AAT was required to determine whether the applicant had satisfied the criteria under clause 457.223(4)(a) of Schedule 2 to the Regulations, which mandates an approved nomination by a standard business sponsor that has not ceased, and clause 457.223(4)(d)(ii), which requires that the position associated with the nominated occupation is genuine. The Tribunal also needed to consider whether the applicant's intention to perform the occupation was genuine, as stipulated in clause 457.223(4)(d).

The Tribunal found that a relevant nomination by Omkar Automotive Ptd Ltd for the occupation of Motor Mechanic had been approved for the applicant on 19 May 2016, thus satisfying clause 457.223(4)(a). Regarding the genuineness of the position, the Tribunal noted that the applicant's previous visa application had been assessed against a nomination by CK Workforce for a different occupation, where the delegate found the position to be not genuine. However, the Tribunal considered the circumstances to be different with the current nomination. It reasoned that as the nomination for Motor Mechanic had been approved by the Department, it could be presumed that the delegate was satisfied that the position was genuine, a mandatory requirement for nomination approval. The Tribunal was satisfied that the position associated with the nominated occupation was genuine, taking into account the nature of the sponsoring business as a small motor mechanic service provider and the proportionality of employee motor mechanics to the business's size.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant meets the criteria under clause 457.223(4)(a) and clause 457.223(4)(d)(ii) of Schedule 2 to the Regulations. The Tribunal explicitly stated that it had not considered whether the applicant possessed the necessary skills and experience for the occupation.