CREATOR ENTERPRISES PTY LTD (Migration)

This matter concerned a review of a decision not to grant a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), to a secondary applicant. The primary applicant, Ms. Puttur, had applied for the visa as a Cook, sponsored by Creator Enterprises Pty Ltd. The dispute arose because the nomination application for Ms. Puttur by Creator Enterprises Pty Ltd was refused, and consequently, Ms. Puttur's visa application was also refused. The secondary applicant, Ms. Puttur's daughter, Miss Oorjita Puttur, had applied for the visa while offshore. The Administrative Appeals Tribunal (AAT) considered the matter.

The legal issue before the Tribunal was whether the secondary visa applicant met the requirements for the grant of a Subclass 457 visa, which hinged on whether the primary visa applicant met the nomination approval requirement under clause 457.223(4)(a) of the Migration Regulations 1994. This clause requires an approved nomination of an occupation by a standard business sponsor that has not ceased. The applicants conceded that there was no approved nomination in respect of the position of Cook for the primary applicant, meaning the review application could not succeed on this basis.

The Tribunal reasoned that the failure to secure an approved nomination was fatal to the visa application, as it was a mandatory requirement for the grant of the visa under clause 457.223(4)(a). Despite acknowledging the applicants' difficult circumstances, including the cessation of trading by two previous sponsoring employers and the closure of the Subclass 457 program, the Tribunal found that the requirements for the standard business sponsor stream had not been met. However, given the unique and special circumstances presented, the Tribunal considered it appropriate to refer the matter to the Minister for consideration of intervention under section 351 of the Migration Act 1958.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa. The Tribunal remitted the application for the visa to the Department of Home Affairs to forward to the Minister for consideration of intervention.