Devish Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a dispute concerning the approval of a nomination for the occupation of Painting Trades Worker. The applicant, Devish Pty Ltd, sought approval of its nomination, but this was refused by the Department of Home Affairs, a decision which Devish Pty Ltd sought to have reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether Devish Pty Ltd met the criteria for the approval of its nomination, specifically in relation to identifying a suitable visa holder or proposed applicant. The Tribunal was required to determine if the nominee identified by Devish Pty Ltd was capable of being granted the relevant visa to work in the nominated occupation, given the closure of the Subclass 457 visa program.

The Tribunal reasoned that regulation 2.72(5) of the Migration Regulations 1994 requires the applicant to identify a visa holder or proposed applicant who will work in the nominated occupation. The Tribunal noted that the identified nominee did not hold a Subclass 457 visa and had no pending application for one. Crucially, the Subclass 457 visa program was repealed and closed to new applications from 18 March 2018, with the Subclass 482 visa program commencing on the same date. The Tribunal found that a Subclass 482 visa holder could not satisfy regulation 2.72(5) in relation to a nomination application made prior to the closure of the Subclass 457 program. The Tribunal also noted that the applicant's authorised representative had ceased to represent them and was unable to provide further information or comment.

Consequently, the Tribunal was not satisfied that Devish Pty Ltd met the applicable criteria for the nomination to be approved. The Tribunal affirmed the decision not to approve the nomination.