B&G Green Trading Pty Ltd (Migration)

This matter concerned an appeal by B&G Green Trading Pty Ltd against a refusal to approve a nomination for a Subclass 457 (Temporary Work (Skilled)) visa. The refusal was made under section 140GB of the *Migration Act 1958* and regulation 2.72 of the *Migration Regulations 1994*. The core of the dispute revolved around the application of regulation 2.72, which had been repealed and replaced, to a nomination application made before 18 March 2018, where an associated visa application had not been lodged by that date.

The legal issues before the court were whether the applicant met the prescribed criteria for the approval of the nomination, considering the repeal and replacement of regulation 2.72 and the impact of transitional provisions. Specifically, the court had to determine the scope and content of the nomination at the time of application for the purposes of assessing the applicability of the old regulation 2.72, and whether any accrued right existed to have the nomination assessed under the previous legislative framework. The court also considered whether the amended regulation 2.72 applied, or if no regulation applied against which the nomination could be assessed.

The Tribunal found that neither the old nor the amended regulation 2.72 applied to the applicant's nomination. It reasoned that clause 6704(6) of the transitional provisions did not preserve the operation of the old regulation 2.72 in circumstances where no visa application was on foot as at 18 March 2018. Furthermore, the Tribunal rejected the applicant's contention that the amended regulation 2.72 applied, finding that arguments based on accrued rights and broad interpretation of transitional provisions were not persuasive. The Tribunal concluded that as no prescribed criteria existed under either the old or amended regulation 2.72 against which to assess the nomination, and section 140GB(2) was conditional on such an assessment, the nomination could not be approved.

Consequently, the Tribunal affirmed the decision under review, noting that any assessment would be futile. The applicant was given the option to withdraw its application, seek a refund, and lodge a fresh nomination under the current provisions, or make written submissions regarding the further conduct of the review within 14 days.