Fayzaan Investments Pty Ltd Atf The Matfa Australia Trust (Migration)

This matter concerned an appeal by Fayzaan Investments Pty Ltd Atf The Matfa Australia Trust (the applicant) against the decision of the Department of Home Affairs not to approve a nomination for a Subclass 457 visa. The applicant had nominated a person to work in a specific occupation. The core of the dispute revolved around whether the nominated person was eligible for a Subclass 457 visa, particularly in light of the fact that the visa application and subsequent refusal occurred while the nominee was offshore. The Administrative Appeals Tribunal (the Tribunal) was required to determine if the applicant met the criteria for the approval of the nomination under the Migration Regulations 1994.

The Tribunal was tasked with assessing whether the applicant had satisfied the requirements of Regulation 2.72 and Section 140GBA of the Migration Act 1958. Specifically, the Tribunal had to consider whether the nominee had been correctly identified in the nomination and whether they would be able to work in the nominated occupation. A key legal issue was the effect of the nominee being offshore at the time of the Subclass 457 visa refusal and whether this precluded a right of merits review for the visa application itself, which in turn impacted the validity of the nomination.

The Tribunal reasoned that for a nomination to be approved, the nominee must be able to hold a Subclass 457 visa associated with that nomination. Evidence indicated that the nominee was offshore when the Subclass 457 visa application was made and when the visa was refused. The Tribunal noted that the visa refusal notification explicitly stated there was no right of merits review, a conclusion the Tribunal agreed with, as the nominee did not fall within the categories of persons entitled to such review under Sections 338 and 347 of the Migration Act, given their offshore status at the time of application and refusal. Consequently, the visa application was considered finally determined. Although the applicant had identified the nominee in the nomination application, the Tribunal was not satisfied that the nominee would work in the nominated occupation because they could not hold the associated Subclass 457 visa.

The Tribunal affirmed the decision not to approve the nomination.