ASPLEY SUPER CLINIC PTY LTD ATF THE ASPLEY SUPER CLINIC TRUST (Migration)

This matter concerned an appeal by Aspley Super Clinic Pty Ltd ATF The Aspley Super Clinic Trust against the refusal of a nomination application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination under the Temporary Residence Transition nomination stream, specifically focusing on compliance with Regulation 5.19(3) of the Migration Regulations 1994.

The central legal issue was whether the failure to provide a written certification regarding conduct contravening section 245AR(1) of the Migration Act 1958 at the time of lodging the nomination application rendered the application non-compliant. Regulation 5.19(2)(aa) mandates that such a certification must accompany the nomination application. The applicant argued that the omission was due to advice from their migration agent, and they later provided a certification form dated significantly after the application was lodged.

The Tribunal reasoned that the requirement to provide the s.245AR(1) certification was a "time of application criteria." As the certification was not provided with the original application, the applicant failed to satisfy Regulation 5.19(2)(aa), and consequently, Regulation 5.19(3)(a)(i), which requires the application to be made in accordance with subregulation (2). The Tribunal found it had no discretion to overlook this mandatory requirement, noting that the applicant's concerns regarding their migration agent could be raised with the Office of the Migration Agents Registration Authority.

Accordingly, the Tribunal affirmed the decision under review to refuse the nomination.