Chowdhury (Migration)

The Administrative Appeals Tribunal considered the case of the applicant seeking review of a decision to refuse a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)). The primary applicant was seeking this visa, and other applicants were seeking to be included as members of the family unit.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations, which mandates an approved nomination of an occupation by a standard business sponsor that has not ceased. The Tribunal also considered the impact of legislative changes that repealed the subclass 457 visa and introduced new criteria for the subclass 482 visa.

The Tribunal reasoned that there was no evidence of an approved nomination for the applicant by her original employer or any other approved sponsor. Furthermore, the commencement of the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 on 18 March 2018 meant that any new nominations lodged after this date could only support applications for the subclass 482 visa, not a subclass 457 visa that had not been finally determined. The Tribunal noted that it was not required to indefinitely defer its decision-making process, referencing relevant case law on the reasonableness of adjourning decisions. Consequently, the Tribunal found that the requirements of clause 457.223(4)(a) were not met.

The Tribunal affirmed the decision to refuse the subclass 457 visa to the primary applicant. It also affirmed the refusal of visas for the other applicants, as they did not meet the secondary criteria to be members of the family unit of a subclass 457 visa holder, nor was there evidence they met the primary visa criteria in their own right.