BIZCENTRAL COMMUNICATIONS PTY LTD (Migration)

This matter concerned an appeal by Bizcentral Communications Pty Ltd against the decision not to approve its nomination for a position. The dispute arose from the application of amended regulations to a nomination made prior to 18 March 2018, where no application for a Subclass 457 visa had been made. The decision was reviewed by Cathrine Burnett-Wake, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the nomination could be approved in the absence of prescribed criteria against which to assess it, particularly in light of the amendments to the Migration Regulations 1994 and the fact that no Subclass 457 visa application was pending. The Tribunal was required to determine the effect of these amendments on a nomination made before the specified date and whether the existing legislative framework permitted the approval of such a nomination.

The Tribunal reasoned that, in accordance with the principles established in *B&G Green Trading*, it was bound to comply with the relevant legislative provisions. It found that because no criteria were prescribed for assessing the nomination under the applicable regulations, and because the power to approve a nomination under s 140GB(2) of the Act was conditional upon satisfying such prescribed criteria, the nomination could not be approved. The Tribunal affirmed the decision not to approve the nomination.