Caldwell (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 457 visa. The primary dispute concerned whether the applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations, which mandates an approved nomination by a standard business sponsor that has not ceased. The applicant conceded that the nomination application lodged by Global Home Solutions Australia Pty Ltd had been withdrawn and that he was not the subject of an approved nomination.

The Tribunal was required to determine if the applicant met the criteria for the Subclass 457 visa, specifically clause 457.223(4)(a), and if the secondary applicant met the criteria under clause 457.321. Additionally, the Tribunal considered whether the applicants' circumstances warranted a referral to the Minister for personal intervention under section 351 of the Migration Act, based on submissions that their situation involved unanticipated legislative consequences or unfair outcomes.

The Tribunal reasoned that the explicit requirement of an approved nomination under clause 457.223(4)(a) had not been satisfied due to the withdrawal of the nomination. Consequently, the primary criteria were not met. The Tribunal also found that the secondary applicant did not satisfy the requirements of clause 457.321, as they were not a family member of a primary visa holder. While acknowledging the applicants' submissions regarding unique or exceptional circumstances, including the liquidation of the proposed sponsor and the birth of their child in Australia, the Tribunal concluded that these circumstances did not override the fundamental requirement of an approved nomination. The Tribunal also noted that information regarding the applicants' departure from Australia was a matter for the Department, particularly in light of the global pandemic.

The Tribunal affirmed the decision not to grant the applicants Temporary Business Entry (Class UC) visas.