Edirisinghe (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, by an applicant whose nominated occupation was Systems Analyst. The applicant’s nominating employer, Gigamate Australia Pty Ltd, had previously applied for approval of this nomination, which was refused by the Department of Immigration and Border Protection. The employer then sought review of this refusal by the Tribunal. The Tribunal, constituted by Sheridan Lee, considered the matter and concluded that a hearing was not necessary, proceeding to make a decision based on the material before it.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.223(4)(a) of Schedule 2 to the Regulations, which mandates an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The Tribunal also had to determine the appropriate course of action given its findings on this criterion.

The Tribunal reasoned that the applicant satisfied clause 457.223(4)(a) because the nominating employer’s application for approval of the Systems Analyst position had been reviewed by the Tribunal. On 23 August 2018, the Tribunal had set aside the Department's refusal and substituted a decision to approve the nomination. Furthermore, departmental records confirmed that Gigamate Australia held valid approval as a standard business sponsor. Having found that the relevant nomination was approved, the Tribunal concluded that the applicant met this specific criterion.

Consequently, the Tribunal remitted the application for the Temporary Business Entry (Class UC) visa for reconsideration by the Minister. The Tribunal directed that the visa applicant be considered to meet the criteria set out in clause 457.223(4)(a) of Schedule 2 to the Regulations, allowing the Minister to assess the remaining criteria for the Subclass 457 visa.