B SANGHA HS SANGHA & K SANGHA (Migration)

This matter concerned an appeal by B SANGHA, HS SANGHA, and K SANGHA against a decision to refuse the approval of a nominated position under the Temporary Residence Transition stream of the Subclass 457 visa program. The core of the dispute revolved around whether the nominee met the eligibility requirements for this visa stream, specifically concerning their visa status at the time of the nomination application and their employment history. The decision was made by a Tribunal member, R. Skaros.

The Tribunal was required to determine two primary legal issues. Firstly, whether the nomination application correctly identified a person who held a Subclass 457 visa at the time of the application, as mandated by regulation 5.19(3)(a). Secondly, the Tribunal had to ascertain whether, in the three years preceding the nominator's application, the nominee had been employed in the nominated position for a total period of at least two years, on a full-time basis and in Australia, while holding a Subclass 457 visa, as stipulated by regulation 5.19(3)(c)(i).

In its reasoning, the Tribunal found that the requirements of regulation 5.19(3)(a) were not met because the nominee, Mr. Sandeep Singh, did not hold a Subclass 457 visa at the time the nomination application was lodged, nor had he been granted one subsequently. The Tribunal noted that the legislation requires the identified person to "hold" a Subclass 457 visa. Regarding the employment period requirement under regulation 5.19(3)(c), the Tribunal acknowledged the nominator's explanation of mitigating circumstances, including family bereavements and extended leave granted to the nominee, and the assertion that they were misled by a previous agent. However, the Tribunal concluded that the Migration Regulations 1994 do not provide for exceptions or considerations of extenuating circumstances, and it was bound to assess the application based on the evidence and the strict requirements of the legislation. Consequently, the Tribunal affirmed the decision under review to refuse the nomination.