De Biagi (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for Temporary Business Entry (Class UC) visas, Subclass 457 (Temporary work (Skilled)), for a position as a Massage Therapist. The primary applicant sought the visa, with a second applicant included as a claimed family unit member. The core of the dispute revolved around whether the applicants met the requirements for the visa grant, specifically concerning the nomination of the occupation.

The legal issue before the Tribunal was whether the applicants satisfied clause 457.223(4)(a) of the Migration Regulations, which mandates an approved nomination of the relevant occupation by a standard business sponsor that has not ceased. The Tribunal was required to determine if the applicants had provided sufficient information or responses to adverse information and to assess whether the nomination requirement had been met.

The Tribunal's reasoning focused on the failure of the nominator to secure an approved nomination for the position of Massage Therapist. The application for approval of the nominated position had been refused by a delegate of the Minister and this refusal was affirmed by the AAT. Consequently, the nominator's application for the nominated position was not approved, meaning the requirement under clause 457.223(4)(a) was not met. The Tribunal also noted that the applicants failed to respond to invitations to comment on information that would form the basis of affirming the decision, including information regarding the refused nomination and potentially adverse information about the visa applicant's occupation and working hours.

Ultimately, the Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas to the applicants. The Tribunal found that the requirements for the standard business sponsorship stream had not been met due to the lack of an approved nomination, and no claims were made or evidence provided to satisfy other potential streams under clause 457.223.