Australian Golden Bird Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a decision by the Minister to refuse the approval of a nomination for a visa. The applicant was Australian Golden Bird Pty Ltd, and the nominated person was Mr Fanyuan Zhu. The dispute centred on whether the applicant had met the criteria for approving the nomination, specifically concerning the identification of the individual who would work in the nominated occupation.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of regulation 2.72(5) of the Migration Regulations 1994. This regulation mandates that the nominator must identify the visa holder, applicant, or proposed applicant for the visa who will be employed in the nominated occupation. The Tribunal was required to determine if the information provided in the nomination, in light of departmental records and correspondence, demonstrated compliance with this regulatory requirement.

The Tribunal reasoned that regulation 2.72(5) requires the identification of a specific individual who is either a current visa holder, an applicant, or a proposed applicant for the visa and who will undertake the nominated role. In this case, the nominated individual, Mr Fanyuan Zhu, had previously held Subclass 457 visas based on nominations with a different company. While Mr Zhu currently held a Subclass 494 visa, the Tribunal found, based on the applicant's response to a request for further information, that Mr Zhu was not a proposed applicant for the visa in question who would work in the nominated occupation. Consequently, the Tribunal concluded that the applicant had failed to meet the criteria stipulated by regulation 2.72(5).

The Tribunal affirmed the decision under review to refuse the approval of the nomination.