DIAS DA SILVA (Migration)

The Administrative Appeals Tribunal considered the case of DIAS DA SILVA (Migration), involving an applicant seeking a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The core dispute revolved around the requirement for an approved nomination for the position of Programmer Developer, a requirement the applicant had failed to meet with three previous nominations refused by the same prospective employer, JD Technology Pty Ltd. A new prospective employer had lodged a fourth nomination application shortly before the hearing.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations, specifically the necessity of an approved nomination for the occupation by a standard business sponsor that had not ceased. The Tribunal also had to determine whether to accede to the applicant's request to delay its decision pending the outcome of the fourth nomination application.

The Tribunal reasoned that the applicant had not met the requirements of clause 457.223(4)(a)(i) as there was no current approved nomination in place. Despite the lodging of a fourth nomination application by a new sponsor, the Tribunal decided to proceed with its decision, noting the significant delay in the visa application process (over two years) and the history of three previous nomination refusals. The Tribunal found that the timing of the fourth nomination application, lodged only two days before the hearing, and the uncertainty regarding its processing and eventual success, did not warrant a postponement. The Tribunal concluded that if the fourth nomination were successful, the applicant could lodge new visa applications offshore.

Consequently, the Tribunal affirmed the decision not to grant the applicants the Temporary Business Entry (Class UC) visas, finding that the requirements for the standard business sponsor stream had not been met. No claims were made or evidence provided regarding other streams within clause 457.223.