BEST METALS PTY LTD (Migration)

This matter concerned an application by Best Metals Pty Ltd for approval of a nominated position, which was reviewed by the Administrative Appeals Tribunal. The core dispute revolved around whether the applicant had adequately identified the visa holder or proposed visa holder who would work in the nominated occupation, as required by regulation 2.72(5) of the Migration Regulations 1994. The Tribunal was tasked with determining if the applicant met the criteria for the approval of the nomination.

The Tribunal was required to consider whether the applicant had satisfied the requirements of regulation 2.72(5), which mandates the identification of the specific individual who will fill the nominated occupation. This regulation reflects a policy intention that a standard business sponsor must clearly identify the prospective employee. The Tribunal interpreted this requirement to mean that the nominee identified at the time of lodging the nomination application must be the same person considered at the time of decision, and that any change in nominee necessitates a new nomination application.

The Tribunal affirmed the decision to refuse the nomination. It reasoned that regulation 2.72(5) requires the decision maker to be satisfied that the approved sponsor has identified the visa holder, or proposed visa holder, who will work in the nominated occupation. The Tribunal concluded that the terms of this regulation, read in conjunction with other provisions such as regulation 2.73(2) and 2.73(4A)(a), restrict the identification of the nominee to the person named when the nomination application was initially lodged. This interpretation aligns with departmental policy, which stipulates that a new nomination application must be lodged if there is a need to change the nominated person. Consequently, the Tribunal found that the applicant had not met this criterion.