Chen (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision to refuse a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)) visa, by the applicants. The primary applicant sought the visa as a Restaurant Manager, nominated by Michellechen Pty Ltd, and the second applicant was a secondary applicant. The decision was made on the papers.

The central legal issue before the Tribunal was whether the applicants met the criteria for a subclass 457 visa, specifically concerning the requirement for an approved nomination by a standard business sponsor. The Tribunal was required to determine if the applicants could satisfy clause 457.223(4)(a) of the Migration Regulations, which mandates an approved nomination that has not ceased. This involved considering the prior refusal of the nomination application by the Department and the Tribunal's own affirmation of that refusal.

The Tribunal reasoned that the applicants had failed to meet the requirement of an approved nomination. It noted that the nomination application made by Michellechen Pty Ltd had been refused by the Department and that the Tribunal itself had affirmed this refusal on 2 August 2018. The Tribunal had invited the applicants to comment on this information, and the applicants' representative responded that they had "no comments to make at this stage." Relying on the authority of *MIAC v Saba Bros Tiling Pty Ltd* [2011] FCA 233, the Tribunal accepted that this constituted a sufficient response. Consequently, the Tribunal concluded that the primary applicant did not meet the criteria under clause 457.223(4)(a), and as a result, the secondary applicant could not satisfy the criteria under clause 457.321, which requires them to be a member of the family unit of a primary applicant who holds a subclass 457 visa.

The Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas to the applicants, finding that the requirements for the standard business sponsor stream had not been met.