ELITE FASHION DESIGNS PTY. LTD. (Migration)

This matter concerned an appeal to the Tribunal regarding a decision to refuse the approval of a nomination. The nominator, Elite Fashion Designs Pty. Ltd., sought approval for a nomination in relation to a Subclass 457 visa. The core of the dispute revolved around whether the proposed visa applicant met the relevant criteria for the nomination to be approved, particularly in light of legislative changes.

The Tribunal was required to determine if the nominator met the requirements of regulation 2.72 of the Migration Regulations 1994, specifically whether the identified person would be able to work in the nominated occupation. This involved considering the repeal of the Subclass 457 visa program and its implications for existing and proposed applications. The Tribunal also had to assess whether it could proceed to a decision without further input from the nominator, given their failure to respond to a notice issued by the Tribunal.

The Tribunal's reasoning centred on the fact that the Subclass 457 visa program was repealed on 18 March 2018. The proposed visa applicant did not hold a Subclass 457 visa and could no longer apply for one. Consequently, the person identified in the nomination could not work in the nominated occupation, meaning the requirements of regulation 2.72(5) were not met. The Tribunal had notified the nominator of this issue and invited a response, but no response was received within the prescribed time. Applying section 359C of the Migration Act 1958, the Tribunal concluded that the nominator was not entitled to appear before it, and it could proceed to a decision based on the available information. The Tribunal also noted that publicly available records indicated the nominator's ABN had been cancelled.

The Tribunal affirmed the decision not to approve the nomination.