Chokshi (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, brought before Mr S Norman of the Tribunal. The dispute arose from the delegate's refusal to grant the visa, based on the applicant not meeting the requirements of clause 457.223(4)(a) of the Regulations, which stipulated that an approved nomination of an occupation by a standard business sponsor must exist and not have ceased. The delegate had noted that the nominator's nomination application was initially refused, and despite the applicant providing various supporting documents, no material response was lodged to the Department's letter advising of this refusal. Consequently, the delegate concluded that the nomination had not been approved at the time of the decision, leading to the visa refusal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.223(4)(a) of the Regulations. This clause requires, among other things, that a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act, that the nomination was made by a standard business sponsor at the time of approval, and that the approval has not ceased. The Tribunal was required to determine if this criterion was satisfied, given the subsequent approval of the nomination application by the Tribunal itself.

The Tribunal reasoned that clause 457.223(4)(a) is a criterion to be satisfied at the time of the decision. Crucially, by the time the Tribunal considered the matter, the nomination application lodged by the applicant's nominator had been approved. Therefore, the Tribunal found that the applicant met clause 457.223(4)(a) of the Regulations. Given this finding, the Tribunal determined that the appropriate course of action was to remit the application for the visa to the Minister for reconsideration, with a direction that the visa applicant meets the specified criterion.