B&G Green Trading Pty Ltd (Migration)

This matter concerned an appeal by B&G Green Trading Pty Ltd against a decision to refuse its business nomination application for a Subclass 457 (Temporary Work (Skilled)) visa. The refusal was based on 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, particularly in light of amendments made on 18 March 2018, given that the nomination application was lodged before this date but an associated visa application was not.

The legal issues before the Tribunal were whether the applicant met the prescribed criteria for the approval of the nomination, considering the repeal and replacement of regulation 2.72. Specifically, the Tribunal had to determine the impact of the transitional provisions on the assessment of the nomination, and whether the scope and content of the nomination should be assessed at the time of application for the purposes of determining the application of the relevant regulation. The Tribunal also considered whether an "accrued right" to have the nomination assessed under the old regulation existed, and if the amending regulations evinced a contrary intention.

The Tribunal reasoned that neither the old nor the amended regulation 2.72 applied to the applicant's nomination. It found that clause 6704(6) of the regulations did not preserve the operation of the old regulation 2.72 in this specific circumstance, as no visa application was on foot as at 18 March 2018. Furthermore, the Tribunal rejected the argument that the amended regulation 2.72 applied, finding that arguments based on "accrued rights" and a broad interpretation of transitional provisions were not persuasive. The Tribunal concluded that section 7(2) of the *Acts Interpretation Act 1901* could not be used to read words into the amended provision to preserve an alleged accrued right.

Ultimately, the Tribunal found that as neither the old nor the amended regulation 2.72 applied, there were no prescribed criteria against which to assess the nomination for the purposes of section 140GB(2)(b) of the *Migration Act*. Consequently, the nomination could not be approved. The Tribunal affirmed the decision under review, upholding the refusal of the business nomination application.