Commerce Australia Group Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a decision to refuse the nomination of an occupation for a Subclass 457 visa. The applicant, Commerce Australia Group Pty Ltd, sought to have a nomination approved. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant had satisfied regulation 2.72(5) of the Migration Regulations 1994, which requires the decision maker to be satisfied that the approved sponsor has identified in the nomination the visa holder, or applicant, who will work in the nominated occupation. This criterion is intended to ensure that a specific individual is linked to the nominated occupation. The Tribunal also considered the broader requirements of section 140GB(2) and section 140GBA of the Migration Act 1958, as well as the implications of regulation 2.73, particularly regarding the identification of the nominee at the time of lodging the application.

The Tribunal reasoned that regulation 2.72(5) mandates the identification of a specific individual who will work in the nominated occupation. It further interpreted this, in conjunction with regulation 2.73, to mean that the individual identified at the time of the initial nomination application must be the one who will work in the nominated occupation. This interpretation aligns with departmental policy, which suggests that if a change of nominee is required, a new nomination application must be lodged. The Tribunal noted that it had attempted to contact the applicant for further information, but no response was received.

Consequently, the Tribunal was not satisfied that the applicant had met the applicable criteria for the nomination to be approved. The decision under review, which refused the nomination, was therefore affirmed.