Burns (Migration)

The Administrative Appeals Tribunal (AAT) considered a review application concerning a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)). The applicants were identified as the first and second named applicants. The dispute centred on the refusal to grant the visa to the first applicant and the eligibility of the second applicant as a member of the family unit.

The Tribunal was required to determine two primary legal issues. Firstly, whether it possessed jurisdiction to review the decision to refuse the subclass 457 visa to the first named applicant. Secondly, whether the second named applicant qualified as a member of the family unit of the primary visa applicant and satisfied the relevant criteria under clause 457.321 of the Migration Regulations 1994.

In relation to the first named applicant, the Tribunal found it lacked jurisdiction. This was because, for a subclass 457 visa, section 338(2)(d) of the Migration Act 1958 (Cth) requires an additional criterion to be met for reviewability. In this instance, the applicant was identified in an approved nomination, and none of the alternative reviewability pathways under section 338(2)(d) were satisfied. Regarding the second named applicant, the Tribunal noted that he did not respond to a section 359A letter, meaning he was not entitled to appear before the Tribunal under section 360(3). Consequently, the Tribunal affirmed the decision not to grant the second named applicant a subclass 457 visa, as he did not satisfy the criteria for its grant.