Dulman (Migration)

The Administrative Appeals Tribunal (AAT) considered a case involving an applicant for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The primary dispute revolved around whether the applicant met the requirements of clause 457.233(4)(a) of the Migration Regulations 1994, specifically concerning the approval and currency of a nomination for an occupation. This issue arose on review by the Tribunal, despite the initial refusal by the delegate being based on English language proficiency.

The Tribunal was required to determine whether the applicant was the subject of an approved nomination that had not ceased, given that the nomination previously approved in relation to the applicant had expired. The Tribunal also had to consider the impact of the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018, which repealed and replaced the Subclass 457 visa scheme and its nomination criteria. The applicant’s representative argued that transitional arrangements preserved the validity of the nomination for the purpose of the review.

The Tribunal reasoned that the nomination, approved on 17 March 2017 for the occupation of Fruit or Nut Grower, ceased by operation of regulation 2.75(2) of the Regulations on 17 March 2018, which was 12 months after its approval. The Amending Regulations commenced on 18 March 2018, after the nomination had ceased. The Tribunal found that the applicant’s arguments regarding transitional arrangements and the timing of the visa application and review application did not overcome the fact that the nomination had ceased prior to the commencement of the new regulations and before the Tribunal could make a decision. Consequently, the Tribunal concluded that the requirements for the standard business sponsorship stream had not been met.

The Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa, finding that the applicant had not met the requirements of clause 457.233(4)(a). No claims were made, nor was there evidence presented, to suggest the applicant could satisfy the criteria for other streams within clause 457.223.