DHILLON (Migration)

This matter concerned an appeal by Mr. Dhillon against a decision by the Department of Immigration to refuse his Subclass 457 (Temporary Work (Skilled)) visa application. The refusal was based on the assertion that his prospective sponsoring employer, Ashwood Transport Pty Ltd, did not have an approved nomination in place at the time of Mr. Dhillon's application, thus failing to meet the requirements of clause 457.223(4)(a) of the Migration Regulations. Mr. Dhillon's wife and son, who were secondary applicants, had their applications refused on the basis that Mr. Dhillon's primary application was unsuccessful. The case was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the requirements of clause 457.223(4)(a) of the Migration Regulations were met in relation to Mr. Dhillon's visa application. This clause mandates that a nomination of an occupation must have been approved under section 140GB of the Migration Act, made by a standard business sponsor at the time of approval, and that the approval of the nomination must not have ceased. The Tribunal was required to determine if Ashwood Transport Pty Ltd satisfied these conditions.

The Tribunal found that Ashwood Transport Pty Ltd held standard business sponsorship from 26 April 2016 until 25 April 2021, and this sponsorship had not ceased. Crucially, the Tribunal noted that while the Department initially refused the nomination, a subsequent review on 4 October 2016 led to the Tribunal setting aside that decision and substituting it with a decision that the nomination was approved on 16 July 2018. The nominated occupation was Transport Company Manager. Therefore, the Tribunal concluded that a nomination had been approved, made by a standard business sponsor, and its approval had not ceased, thus satisfying the requirements of clause 457.223(4)(a).

Given that the Tribunal found Mr. Dhillon met the criteria under clause 457.223(4)(a), the appropriate course of action was to remit the applications for the Temporary Business Entry (Class UC) visas to the Minister for reconsideration of the remaining criteria for a Subclass 457 visa. The Tribunal directed that Mr. Dhillon met the specified criteria for the visa.