Afraz (Migration)

This matter concerned an application for review of a decision not to grant a Temporary Business Entry (Class UC) visa, subclass 457. The applicant sought to have the decision reviewed by the Tribunal. The primary issue revolved around the requirements for a standard business sponsor and an approved nomination under clause 457.223(4)(a) of the Migration Regulations.

The Tribunal was required to determine whether the applicant met the criteria for a subclass 457 visa, specifically whether there was an approved nomination of an occupation relating to the applicant by a standard business sponsor that had not ceased. The Tribunal also considered whether it was required to defer its decision pending the outcome of a separate nomination application.

The Tribunal found that the applicant's employer, BBQ Lounge Pty Ltd, had its nomination for the applicant as a Cook refused by the Department. While BBQ Lounge Pty Ltd sought review of this decision, it subsequently withdrew its application, leading the Tribunal to conclude it had no jurisdiction to review the refusal. Although a new nomination for the applicant as a Chef was approved in March 2021, this nomination was lodged after 18 March 2018. The Tribunal noted that amendments to the regulations effective from 18 March 2018 meant that nominations lodged after this date could only support applications for the Temporary Skill Shortage (subclass 482) visa or existing subclass 482 or 457 visa holders, circumstances not applicable to the applicant. Citing case law, the Tribunal determined it was not required to indefinitely defer its decision-making process and that it would be futile to delay.

Consequently, the Tribunal affirmed the decision not to grant the visa, finding that the requirements of clause 457.223(4)(a) were not met as there was no approved nomination that could support the applicant's subclass 457 visa application.