Dewar (Migration)

This matter concerned an appeal by Mr Dewar and Ms Ash against the refusal of their applications for Temporary Business Entry (Class UC) visas, specifically Subclass 457 (Temporary Work (Skilled)) visas. The primary applicant, Mr Dewar, was nominated for the position of Building Associate. The delegate initially refused the visa applications on the grounds that Mr Dewar had not demonstrated the necessary skills, qualifications, and employment experience for the nominated role. The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Dewar met the visa criteria, particularly in light of legislative amendments and the validity of the company's nomination.

The central legal issue before the Tribunal was whether the company's approved nomination for Mr Dewar's position remained valid. This involved interpreting transitional provisions within the Amending Regulations, specifically clause 6704(15), which addressed the application of amendments to existing nominations. The Tribunal also considered whether the nomination had ceased in accordance with regulation 2.75(2)(b) of the Regulations, and whether the savings provisions applied retrospectively to nominations that had already ceased before the commencement of the Amending Regulations.

The Tribunal reasoned that while the initial refusal was based on Mr Dewar's lack of demonstrated skills, the passage of time and legislative changes meant the primary consideration was the validity of the nomination. The Tribunal noted that the approved nomination had ceased on 24 February 2018, prior to the commencement of the Amending Regulations. Clause 6704(15) of the Amending Regulations was intended to prevent nominations from ceasing during AAT review, but it did not apply retrospectively to nominations that had already ceased before the commencement day. As the nomination had ceased before the relevant date, and no evidence of Mr Dewar's skills was provided, the Tribunal found that Mr Dewar did not meet the requirements for the visa. Consequently, Ms Ash, as a secondary applicant, also did not meet the criteria for a member of a family unit.

The Tribunal affirmed the decision to refuse the Temporary Business Entry (Class UC) visas for both applicants.