Fartyal (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457, made by a primary applicant and a second applicant as a member of the family unit. The dispute arose because the Department initially refused to approve the nomination of the occupation for the primary applicant, which subsequently led to the refusal of the visa application. The case was heard by C. Burnett-Wake, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the primary visa applicant met the requirements of clause 457.223(4)(a) of Schedule 2 to the Regulations, specifically concerning the approval of a nomination for the occupation. The Tribunal also had to consider the implications of its decision on the visa application of the second applicant, who was a member of the primary applicant's family unit.

The Tribunal reasoned that the nominating employer, Mishra’s Kitchen Pty Ltd, had initially applied for the approval of the position of Cook for the primary applicant. Although the Department refused this nomination, the Tribunal had previously set aside that decision on 29 July 2019 and substituted a decision to approve the nomination under regulation 2.72. Consequently, the Tribunal found that the requirements of clause 457.223(4)(a) were met. Given this finding, the Tribunal determined that the appropriate course was to remit the primary applicant's visa application to the Minister for reconsideration of the remaining criteria. Furthermore, as the primary applicant's application was being remitted with a finding that he met clause 457.223(4)(a), the second applicant's application, being dependent on the primary applicant meeting the criteria, also required full reconsideration.

The Tribunal remitted the applications for Temporary Business Entry (Class UC) visas for reconsideration. The remittal was made with the specific direction that the first named applicant meets the requirements of clause 457.223(4)(a) of Schedule 2 to the Regulations.