Design Hvac Pty Ltd (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse the approval of a nomination made by Design HVAC Pty Ltd. The dispute arose when Design HVAC Pty Ltd sought to nominate an individual for a Subclass 457 (Temporary Work (Skilled)) visa. The core issue was whether the nomination met the relevant criteria for approval under the Migration Regulations 1994.

The Tribunal was required to determine if the applicant, Design HVAC Pty Ltd, had satisfied the criteria for the approval of its nomination, specifically in relation to the nominated occupation and the proposed visa holder. A critical aspect of the determination involved assessing the status of the visa application for the nominated individual, Mr Yarali, and whether the requirements of Regulation 2.72 of the Migration Regulations 1994 had been met.

The Tribunal affirmed the decision to refuse the nomination. The primary reason for this decision was that the visa application for the nominated individual, Mr Yarali, had been withdrawn on the same day as the delegate's decision to refuse the nomination. This withdrawal meant that Mr Yarali no longer had an application for a Subclass 457 visa before the Department or the Tribunal. Regulation 2.72(5) requires that the nominated person must be a holder of, or an applicant or proposed applicant for, a Subclass 457 visa. As Mr Yarali's application was withdrawn, this criterion was not met. Furthermore, the Tribunal noted that the Subclass 457 visa had been replaced by the Subclass 482 (Temporary Skills Shortage) visa, which was not compatible with a nomination application made prior to the closure of the Subclass 457 program, meaning Mr Yarali could not be granted the required visa based on the existing nomination. Consequently, Design HVAC Pty Ltd was refused approval of its nomination and would need to make a new application if it wished to employ Mr Yarali in the future.