Bao & Wang Logistics Pty Ltd (Migration)

This matter concerned an application by Bao & Wang Logistics Pty Ltd for approval of an employer nomination for a Subclass 457 visa. The applicant sought to nominate an occupation, but no corresponding Subclass 457 visa application had been lodged for a nominee, and the applicant's nominee was already working in the nominated occupation. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the approval of the nomination, particularly in light of the closure of the Subclass 457 program.

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, which mandates that the nominator identify the visa holder, or proposed applicant, who will work in the nominated occupation. The Tribunal also considered the implications of the closure of the Subclass 457 program on the ability to identify or substitute a nominee.

The Tribunal reasoned that Regulation 2.72(5) requires the decision-maker to be satisfied that the sponsor has identified a specific person who will work in the nominated occupation, and that this identification typically relates to the person named at the time the nomination application was lodged. Given that the Subclass 457 program closed on 18 March 2018, the Tribunal found there was no procedural mechanism for identifying a new or alternative nominee. Furthermore, the applicant had not provided any submissions to the Tribunal regarding an alternative nominee being available to work in the nominated occupation. Consequently, the Tribunal was not satisfied that the applicant had met the criterion of identifying a visa holder or applicant who would work in the nominated occupation.

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