63 Racecourse Rd Pty Ltd (Migration)

This matter concerned an application by 63 Racecourse Rd Pty Ltd for approval of a nomination for a Temporary Work (Skilled) Subclass 457 visa. The nomination identified Chamchoi Promsuwan for the occupation of Café or Restaurant Manager. The delegate of the Department refused the nomination, which consequently led to the refusal of Ms. Promsuwan's visa application. Ms. Promsuwan subsequently withdrew her application for review of the visa refusal. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the criteria for approval of the nomination.

The primary legal issue before the Tribunal was whether the applicant satisfied regulation 2.72(5) of the Migration Regulations 1994, which requires the applicant to identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. This requirement was considered in light of the fact that the Subclass 457 visa program was repealed and closed to new applications from 18 March 2018, with the Subclass 482 (Temporary Skills Shortage) visa commencing on that date.

The Tribunal reasoned that for the nomination to be approved, the identified person must be able to hold the relevant visa. In this case, the identified nominee, Chamchoi Promsuwan, did not hold a Subclass 457 visa and had no pending application for one. Furthermore, due to the repeal of the Subclass 457 visa program, Ms. Promsuwan was no longer able to apply for such a visa. The Tribunal noted that the Subclass 482 visa was not compatible with a nomination made prior to the repeal of the Subclass 457 visa, meaning a Subclass 482 visa holder could not satisfy regulation 2.72(5) in this context.

Consequently, the Tribunal was not satisfied that the applicant had identified a person who could satisfy the requirements for the nominated visa. Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.