Fernandez (Migration)

This matter concerned applications for Temporary Business Entry (Class UC) visas, subclass 457 (Temporary Work (Skilled)), brought by an applicant and their family members. The dispute arose because, at the time of the initial decision, there was no approved nomination for the primary applicant's occupation. The employer, Melbourne Tractors Pty Ltd, sought review of the refusal to approve the nomination. The decision under review was made by Alison Mercer, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the requirement for an approved nomination, as stipulated by clause 457.223(4)(a) of Schedule 2 to the Regulations, was met. This clause requires that a nomination of an occupation relating to the applicant has been approved by a standard business sponsor and that this approval has not ceased. The Tribunal also implicitly considered the appropriate course of action given the circumstances, including the status of the family members' applications.

The Tribunal reasoned that while there was no approved nomination at the time of the initial decision, this situation had been rectified. On 25 January 2019, the Tribunal had set aside the Department's decision to refuse the nomination and substituted a decision to approve it. Furthermore, the Tribunal was satisfied that the employer was an approved standard business sponsor until 2023. Consequently, the Tribunal found that the requirement under clause 457.223(4)(a) was met. The Tribunal determined that, as it was able to find in favour of the applicants on this criterion based on the material before it, a hearing was not necessary pursuant to section 360(2)(a) of the Act.

The Tribunal remitted the applications for the Temporary Business Entry (Class UC) visas for reconsideration by the Minister. The direction was that the first named applicant met the criteria under clause 457.223(4)(a). The applications of the second, third, and fourth named applicants, who applied as family members, were to be determined by reference to the outcome of the first applicant's application upon remittal to the Department.