Benjamin (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, where the applicant's proposed sponsor, Sunnyhurst Aged Care Pty Ltd, had its application for approval of a business nomination refused. The applicant sought review of the decision to refuse her visa application before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of paragraph 457.223(4)(a) of the relevant regulations, which stipulated the necessity of an approved nomination by a standard business sponsor that had not ceased. The Tribunal was also required to consider the applicant's claims regarding the alleged negligence of her former migration agent and her request for an adjournment to allow her spouse to lodge a separate application.

The Tribunal reasoned that for the applicant to satisfy paragraph 457.223(4)(a), there must have been an approved nomination in her favour. It found that Sunnyhurst Aged Care Pty Ltd's business nomination was refused on 20 May 2015, and its subsequent application for review of this refusal was withdrawn, meaning there was no approved nomination in place at the time of the Tribunal's decision. While acknowledging the applicant's difficult position due to her former agent's alleged failure to inform her of these developments, the Tribunal held that the acts or omissions of an agent are generally not considered circumstances beyond a person's control in Australian law. Furthermore, the Tribunal noted that the wording of paragraph 457.223(4)(a) did not grant it discretion to waive mandatory requirements based on personal circumstances or the conduct of a migration agent. The Tribunal also determined that it lacked the power to grant an adjournment for the purpose of allowing the applicant's spouse to lodge a separate application.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant did not meet the requirements for the grant of the Temporary Business Entry (Class UC) visa.